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Deadly Judicial Reasoning

September 25, 2008

When the writ of amparo took effect on Oct. 24 last year, there was much optimism, including in this column (see "The hope of amparo in the Philippines") remedy for the hundreds of victims of extrajudicial killings and disappearances in the Philippines, their family members and witnesses to these human rights violations. After all, anyone could file the writ at no cost in a variety of courts throughout the country, and it applied to both those who had experienced violence as well as those who were facing threats. It provided, among other remedies, orders for temporary protection and witness protection. Moreover, it did so through an expeditious judicial process in which a summary hearing must be held seven days after the writ is issued and the court must render a decision within 10 days after the hearing concludes. Various legal obstructions, such as counterclaims or motions to dismiss or postpone the hearing, were also prohibited, further facilitating a speedy judicial process.

The first person who had disappeared to be released was Rowil Muñasque in Mindanao on Nov. 7. Muñasque, a member of the Christian Youth Fellowship of the United Church of Christ in the Philippines (UCCP) and a Bayan Muna organizer, had been abducted by soldiers of the 53red Infantry Battalion in Zamboanga del Sur on Oct. 24 on the day that the writ of amparo took effect.

By mid-December, writs of amparo had been issued in seven other cases of disappearances. However, in a number of these cases, the victims were asked to sign an affidavit of voluntary surrender by the military and were asked whether they wanted to remain in the army camp where they were detained or return to their families. Naturally, while being held by the military, a number of disappeared detainees opted to initially remain in the custody of the army.

Among them was Luisito Bustamante, a 22-year-old Mindanao farmer living near Davao, who was reportedly abducted on Oct. 27 by armed paramilitary men led by Noli Obat, leader of a religious sect. When questioned in court by Executive Judge Isaac Robillo of the Davao City Regional Trial Court about his affidavit claiming he was a former member of the New People's Army (NPA), the armed wing of the Communist Party of the Philippines (CPP), and that he had voluntarily surrendered to Obat, Bustamante admitted that he could barely read even the Visayan translation of the affidavit that was written in English. Bustamante indicated during the hearing on Nov. 14 that the affidavit had been prepared by a lawyer representing the military inside an army base in Davao. At the conclusion of the hearing, the judge ordered his release.

Upon returning home, Bustamante showed his family the marks on his neck and back created by burning cigarettes and his severely scarred ankles that had been tied with wires. He also recounted how he was blindfolded and beaten, so much so that he urinated and defecated in his pants. He was then forced to eat his feces. He was also tortured with a cellophane bag laced with hot peppers wrapped around his head, causing his nose, eyes and face to burn as he gasped for breath.

Thus, less than two months after the writ of amparo took effect there were already indications that attempts were being made by those believed most responsible for the disappearances as well as extrajudicial killings in the country, i.e., the military, to undermine one of the major objectives of the writ of amparo to locate and release those who had disappeared.

Most recently, however, subversion of the writ of amparo is coming from the judiciary itself. In a statement in July, the National Union of Peoples' Lawyers (NUPL) criticized the decision of the Court of Appeals to dismiss several amparo petitions. This denial included writs filed by Nilo Baculo, a journalist in the province of Oriental Mindoro who claimed that he had learned in December from an acquaintance who was to kill him that a group of government officials and business people he had offended with his exposés wanted him dead, and the mother of Jonas Burgos, who was abducted around noon on April 28, 2007, in a mall in Quezon City. Although Burgos quietly taught peasants how to farm organically, as the son of Joe Burgos, a deceased newspaper publisher who defied President Ferdinand Marcos and was a well-known champion of press freedom, his disappearance generated a great deal of concern in the country.

Other writs of amparo that the Court of Appeals dismissed involved the cases of Francis Saez, a survivor and witness of the extrajudicial killing of activists Eddie Gumanoy and Eden Marcellana who implicated Maj. Gen. Jovito Palparan in their deaths in 2003; Gumanoy's daughters Rose Anne and Fatima; National Democratic Front (NDF) peace consultant Elizabeth Principe; and two University of the Philippines students who disappeared in 2006, Sherlyn Cadapan and Karen Empeño.

The decisions of the Court of Appeals for denying the writs were largely based on a lack of "clear evidence" to support the claims of "apparent or visible" threats to their lives.

Are reports of surveillance really an unjustified fear though in a country that has witnessed hundreds of extrajudicial killings and disappearances since the Arroyo administration took office in 2001? Do the victims or those seeking protection under the writ of amparo before the court not fall into the category of those who have died or disappeared or who have faced threats to their lives in the past seven years? Are not journalists, activists of various kinds and students among the list of the dead and disappeared?

In answering these basic questions, it is difficult to understand how the Court of Appeals denied the writs of amparo in these cases, especially since most of them are among the most well-known instances of human rights violations in the country. Surely, the judges were aware of this fact. Thus, why were the writs rejected?

One can only speculate that the judges were subjected to political influence or intimidation by people wielding considerable political power, or did corruption play a role? The only other conclusion one can draw is that the judges are incompetent.

The Court of Appeals has seriously failed to uphold the spirit with which the Supreme Court initiated the writ of amparo last year. In the process, it has fostered impunity for those who commit extrajudicial killings and disappearances instead of protecting the victims, their families and witnesses to these abuses. It is not acceptable, but is understandable, that the military has sought to subvert the writ of amparo. An enigmatic question thus arises regarding the judiciary: why has the Court of Appeals chosen to do the same?

Bruce Van Voorhis

(Bruce Van Voorhis is a staff member of the Asian Human Rights Commission in Hong Kong whose work often focuses on the Philippines. In addition to working at the commission since 2000, he is also a co-convener of the Hong Kong Campaign for the Advancement of Human Rights and Peace in the Philippines, a coalition formed in April 2005 to respond to the upsurge of extrajudicial killings in the country.)

Bruce Van Voorhis serves as missionary with the Asian Human Rights Commission located in Hong Kong.  He serves as a writer and editor with the Commission.

 

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