Re: Release of Health Care Workers arrested February 6, 2010
To: President Aguino and Secretary De Lima
From: Gail Davidson, Executive Director, LRWC
Date: 2010-10-01
Lawyers’ Rights Watch Canada (LRWC) requests that your government act to remedy the illegal arrest, detention and treatment of the 43 health care workers arrested at Rizal on February 6, 2010 and the violations of their internationally protected rights by immediately directing:
1. The withdrawal of all charges against each and all of them; and,
2. The release of all 43 detained health care workers.
LRWC investigations
NGOs around the world have expressed the opinion that the charges against the 43 health care workers are trumped up and the evidence against them fabricated to ensure false convictions and have called for their unconditional release. The list of NGOs includes august groups such as Amnesty International. Attached as Appendix II is a partial list of Canadian NGOs calling for the release of the health care workers.
LRWC—as a result of our own investigations—agrees with this assessment. LRWC is further of the opinion that the charges against the 43 health care workers (illegal possession of firearms and explosives and violation of the Commission on Elections gun ban) are not sustainable and cannot result in bona fides convictions before a properly constituted court because of tainted evidence, denial of rights to timely access to counsel, due process and a fair trial and illegal treatment during arrest and imprisonment. Attached as Appendix I to this letter is a LRWC’s brief summary of violations of international law obligations by Philippine authorities in the health workers’ case.
The evidence upon which the health care workers are being held (on non-bailable offences) has been obtained under circumstances that either forbid admissibility in a court of law or destroy reliability. For example, alleged statements by the 5 people still held separately (that they are members of the New People’s Army) appear inadmissible by virtue of the illegal treatment used to obtain the statements which available reports indicated included torture and other cruel, inhuman and degrading treatment, denial of access to lawyers, bribery and intimidation. Factors indicating that physical evidence (C4 explosives, pistol, grenades and improvised land mines) alleged to have been found on the Velmonte property was planted that cannot be ignored include: opportunity, absence of arrest warrants, absence of valid search warrants for the premises, failure to ensure that the search of the premises was witnessed any independent party or representative of the accused, failure to ensure that the search of the premises was supervised by appropriately trained police personnel, extraordinary measures (blindfolding) taken to prevent the accused from observing or overseeing in any way the search of the premises, failure to advise arrestees of the allegations against them, the reasons for their arrest or the reason for the search of the premises.
The legal options available to the detainees appear strikingly impotent to secure a timely judicial review of the legality of their arrest, treatment and detention and of the search of the property. Similarly calls on the Office of the Human Rights Commission to ensure a professional review of allegations that evidence against them has been fabricated or illegally obtained appear to have been futile and resulting in a remedy. Clearly the rights of the 43 health care workers to due process and a fair trial and to remedies for the violation of their internationally protected rights have already been so severely impaired as to foreclose their right to make full answer and defense to the charges they presently face. The habeas corpus proceedings initially filed February 9, 2010 has been stalled for almost 8 months. This delay raises the concern of executive interfere—again fatal to the legitimacy of the procedure.
During our deliberations, LRWC has also considered the records of community service of the various people accused and implicated by these proceedings. Dr. Melicia Velmonte, owner of the property in question, Chairman of COMMED, a well-known infectious disease specialist and professor emeritus of the University of the Philippines College of Medicine is, we believe, most unlikely to be involved in an illegal enterprise. Similarly, the records of community health care service of Dr. Merry Mia-Clamor (Director of Health Education, Training and Services Department, Council for health and Development), Gary Liberal (registered nurse, operating room head nurse and union President of the Jose Reyes Memorial Medical Center), Teresa Quinawagan, (midwife), Dr. Alexis Montes, (member of the Community Medicine Development Foundation), Lydia Obera (staff of Alliance of Health Workers), Reynaldo Maqabenta (driver for Community for Health and Development) inspires disbelief in their criminality. We urge a solution before more damage is done. In particular we wish to highlight the urgent need to protect the rights of the next generation. Mercy Castro is due to deliver her baby on October 27, 2010. She must be freed before her due date. No proper provisions have been made for her medical care and attention before, during or after delivery. We are advised that Carina Judilyn Oliveros had her baby in custody in July, that she is currently under hospital arrest with her infant and will be returned to Camp Bagong Diwa at the expiry of 3 months. Clearly continued detention of Ms Oliveros can only have negative long term consequences for the infant.
LRWC investigations included: a visit on September 20, 2010 to the prisoners at Camp Bagong Diwa in Taguig City, interviews with legal counsel, a review of the recommendations and conclusions by other human rights organizations about the mal fides of the arrest, detention, treatment and about the charges themselves and a review of the international law bonding on the Philippines and relevant to the issues.
Based on LRWC’s examination of the facts, it is clear that the continued detention of the 43 health care workers will indubitably result in risks to the communities that were being served by them. We note in particular the record of service of the two doctors, the nurse and the midwives detained. It is likely that continued detention of the 43 health care workers may result in irremediable personal and professional harm to some or all of them. We are aware of both the abysmal circumstances in which they are detained and of the pain of being separated from their work, their communities and their families.
Based on LRWC’s examination of the applicable international law, it is clear that the illegal arrests, the improperly authorized and supervised search of Dr. Velmonte’s property, the exposure of the health care workers to treatment absolutely prohibited under international law and the denial of due process critical to a fair trial, combine to irremediably impair their right to a fair trial. We conclude that the remedy required is withdrawal of all charges and release. We know of no factors and no law that legitimately authorizes continued detention. We note that continued detention may in itself constitute a violation by the government of the Philippines, to ensure rights protected by the International Covenant on Civil and Political Rights. It is well established that state party to this treaty must as an essential part of the duty to ensure protected rights, act quickly to provide effective remedies for violations. (Appendix I)
All of which is respectfully submitted.
APPENDIX I
The Philippines’ International Law Obligations
A. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)
A.1 Duty to prevent and punish torture and other cruel, inhuman or degrading treatment or punishment (torture).
The Philippines has a number of inescapable duties arising from UNCAT : to prevent torture, to investigate allegations of torture, to prosecute suspected perpetrators and to punish those convicted. There is also a duty to ensure that evidence obtained through torture will not be used in a court of law.
LRWC’s investigations indicate violations of the health care workers’ rights to: freedom from torture and other cruel, inhuman and degrading treatment or punishment; to a prompt and competent investigation of torture complaints; right to be protected from further ill treatment. We understand that there has been no assurance that the prosecution will not seek to introduce as evidence against the health care workers statements made and evidence obtained as a result of torture.
A.2 Failure to investigate allegations of torture
Just as freedom from torture in a non-derogable right that the state is obliged to vigorously protect under all circumstances, so the Philippines (under Art. 12) has an urgent duty to investigate allegations of torture and of other cruel, inhuman or degrading treatment as part of its duty to prevent such crimes. We know of no investigation of the serious allegations of torture used on the health care workers during the days after their arrest. CAT Committee rulings establish that delay by a state to investigate allegations of torture or inhumane or degrading treatment is itself a violation of CAT. The Philippine’s duty to investigate became imperative, at the latest, in March 2010 by which time notice had been given that the health care workers had been subjected to a variety of prohibited treatments designed to force confessions and compliance.
B. International Covenant on Civil and Political Rights (ICCPR)
The Philippines has an obligation arising from the ratification of the International Covenant on Civil and Political Rights ICCPR to ensure and protect the health care workers’ rights to:
- a fair trial (art. 14, see text below),
- freedom from arbitrary arrest and detention (art. 9(1) “No one shall be subjected to arbitrary arrest or detention.”)
- habeas corpus (art. 9(4) “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”)
The delay in the hearing of habeas corpus petition has effectively denied this right of review and resulted in the detention being arbitrary.
B.1 Failure to ensure fair trial rights
The right to a fair trail, although not specifically designated as a non-derogable right by the text of the ICCPR, represents the procedural means to ensure the enjoyment of the non-derogable rights. The Human Rights Committee has established in General Comment 29 that “procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights”.
As you are aware, the right to fair trail cannot be displaced even when States are challenged with the most adverse situations. The ICCPR, articulates basic fair trial rights in Article 14:
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ….
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
…
(g) Not to be compelled to testify against himself or to confess guilt.
The Philippines has not to our knowledge, notified the UN Secretary General on the derogation of any of the rights enshrined in the ICCPR as per the requirement of Article 4. Thus, the rights guaranteed by Article 14 must be respected and protected by the Philippines.
B.2 Failure to allow timely access to counsel
International human rights jurisprudence has determined that the duty of a State to ensure
fair trail rights implies a set of obligations. Firstly, State officials must allow lawyers the contact with clients necessary to the preparation and presentation of a full defense and the protection of their rights. In casu, the 5-day delay in allowing communications between the health care workers and their lawyers—during the period when the health care workers were subjected to egregious rights violations—irremediably impaired the lawyers’ ability to adequately protect their clients’ rights.
The Basic Principles on the Role of Lawyers further requires states to ensure that access to legal counsel by detained persons such as the health care workers, is prompt, confidential and free from interference. Article 8, states as follows:
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.9
The importance of timely access was emphasized by the European Court of Human Rights in Magge v. UK where the court determined that denial of access to a lawyer for a period of 48 hours constituted a violation of Article 6 (right to fair trail) of the European Convention on Human Rights: In the Court’s opinion, to deny access to a lawyer for such a long period [48 hours] and in a situation where the rights of the defence were irretrievably prejudiced is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6.
In the case of the health care workers, the Philippines denied access to lawyers for the first 5 critical days after their arrest. It is reasonable to conclude that the health care workers rights to defend the charges have been, by the denial of access to lawyers alone, irretrievably prejudiced.
B.3 Failure to provide full disclosure
Secondly, States must allow access to the case files, in order for the accused’s lawyer(s) to: learn full particulars of the charges, know the particulars of inculpatory and exculpatory evidence in the possession of the prosecution and to have access to the information relevant to issues of admissibility and reliability. We understand that this type of disclosure has not yet occurred in spite of the very serious allegations indicating that evidence may have been fabricated, obtained through torture and planted by people other than the health care workers.
We conclude that the fair trial rights of the health care workers have been irremediably compromised and that a withdrawal of charges is required.
C. Failure to comply with international human rights obligations
Neither domestic law nor the exigencies of national problems displace or diminish these international law obligations. The Vienna Convention on the Law of Treaties determines that State parties are bound by their treaty obligations and that all treaty obligations must be performed in good faith (the principle of pact sunt servanda). Article 27 of the Vienna Convention reads: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
It is important to remember that actions of the previous government in the arrest, treatment and detention of the health care workers cannot be justified as part of a larger anti-terrorism campaign—albeit against the wrong people. The Philippines has a duty, in acting to combat terrorism, to comply with all international human rights and humanitarian law obligations. The UN Security Council has clearly stated this obligation in Resolution 1456 (2003),
“States must ensure that any measure taken to combat terrorism comply with all
their obligations under international law, and should adopt such measures in
accordance with international law, in particular international human rights,
refugee, and humanitarian law.”
APPENDIX II
Canadian NGOs requesting the release of the 43 health care workers
1. The United Church of Canada
2. Centre for Philippine Concerns
3. Canada-Philippines for Human Rights in the Philippines (CPSHR)
4. KAIROS-Canadian Ecumenical Justice Initiatives
5. Ottawa Committee for Human Rights in the Philippines
6. PINAY (Filipino Women’s Organization in Québec)
7. Development and Peace
8. Philippine Solidarity Group – Toronto
9. Migrante-Ontario
10. Victoria Philippines Solidarity Group
11. Mining Watch Canada
12. Canadian Union of Public Employees, Local 4600
13. Primate’s World Relief and Development Fund
14. Beaconsfield United Church
15. Alliance for Peoples’ Health (APH)
16. Hon. Mable Elmore, Member of the Legislative Assembly
17. Migrante-BC
18. People’s International Observers Mission- BC contingent/delegates
19. Lawyers Rights Watch Canada
