Photo Credit: Hukbo
Tuesday, October 30, 2018
H.E. Rodrigo Duterte
President of the Republic, Malacañang Palace,
JP Laurel St., San Miguel,
Manila Philippines
Fax: (+632) 742-1641 / 929-3968
E-mail: op@president.gov.ph
The Honorable Menardo I. Guevarra
Secretary of Justice
Padre Faura Street, Ermita
Manila 1000, Republic of the Philippines
Direct Line 521-8344; 5213721 | Trunkline: 523-84-81 loc.214 | Fax: (+632) 521-1614
Email: communications@doj.gov.ph
Dear President Duterte and Secretary of Justice Guevarra,
Re: Illegal arrest, detention, and torture of peasant rights advocates
Lawyers’ Rights Watch Canada (LRWC) is a committee of lawyers and others who promote international human rights and the rule of law through advocacy, research, and education. LRWC has Special Consultative Status with the Economic and Social Council of the United Nations.
LRWC writes in response to information obtained from reliable sources that Yolanda Diamsay Ortiz (Ortiz), 46 years old, Eulalia Ladesma (Ladesma), 44 years old, Edzel Emocling (Emocling), 23 years old, and Rachel Galario (Galario), 20 years old, (collectively, the Peasant Activists) have been illegally arrested and detained by the Best Operational Support Unit of the Philippine National Police (CIDG) and elements of the 7th Infantry Division in Sitio Bangkusay, Brgy. Talabutab Norte, Natividad, Nueva Ecija. Emocling and Galario were charged with illegal gun possession and posted bail on October 17, 2019. Ladesma and Ortiz, have been charged with possession of explosives and remain in custody. [1]
LRWC objects to the misuse of criminal law powers to arrest, detain, and prosecute activists in the Philippines for exercising their democratic rights to engage in dissent and advocacy. The arrest and continued detention is arbitrary and in violation of the Philippine’s domestic law and international law obligations. The Government of the Philippines appears to be wrongly using criminal law powers to silence and punish community members calling for reforms to address unequal access by peasants in the Philippines to equality, employment, and advocacy rights for peasants.
Background [2]
The Peasant Activists were arrested on October 13, 2018 and detained by the CIDG in their office at the Old Capitol building at Cabanatuan City. The Peasant Activists are alleged by authorities to be members of the New People’s Army and have been labelled ‘rebels’ by the Army’s 7th Infantry Division. [3]
Yolanda Diamsay Ortiz
Ortiz is a member of Anakpawis, the electoral wing of Kilusang Mayo Uno, a group advocating improved labour rights, agrarian reform and land re-distribution. Relatives of Ortiz were allowed to visit her on October 14, 2018 and reported that she had been badly beaten with visible bruises on her face. Her left eye was swollen and there are hand marks on her neck due to strangulation. We are aware of reports that each time she did not answer a question, that she would be beaten. Dr. Reginaldo Pamugas of the Health Action for Human Rights (HAHR) was repeatedly denied access and Karapatan paralegals were initially denied access to visit Ortiz. However, a Karapatan lawyer was granted access on October 18, 2018 (five days after Oritz’s arrest). [4] Ortiz has been charged with possession of explosives and remains in custody.
Eulalia Ladesma
Ladesma is a member of the Gabriela Women’s Party list (a General Assembly Binding Women for Reforms, Integrity, Equality, Leadership, and Action (GABRIELA)), an organization that advocates for women’s issues. Relatives of Ladesma were allowed to visit her on October 14, 2018 and reported that she had been badly beaten with visible bruises on her face. We are aware of reports that Ladesma was taken by the hair and forced to drop to the ground, kicked several times by CIDG operatives who tied her hands. Reports indicate that the CIDG were attempting to force her to admit to being “Mariz” and each time she did not answer a question, she would be beaten. Dr. Reginaldo Pamugas was repeatedly denied access and Karapatan paralegals were initially denied access to visit Ortiz. However, a Karapatan lawyer was granted access on October 18, 2018 (five days after Ladesma’s arrest). [5] Ladesma has been charged with possession of explosives and remains in custody.
Edzel Emocling
Emocling is a former member of the League of Filipino Students (LFS) in the Polytechnic University of the Philippines (PUP). Dr. Reginaldo Pamugas was repeatedly denied access and Karapatan paralegals were denied access to visit Emocling. Emocling was charged with illegal gun possession and posted bail on October 17, 2018.
Rachel Galario (Galario)
Galario is a youth/peasant activist. Little information is known about Galario’s physical state as Karapatan paralegals were denied access to visit Galario. Galario were charged with illegal gun possession and posted bail on October 17, 2018.
International Human Rights Obligations of the Philippines As a member of the United Nations, the Philippines has agreed to respect rights guaranteed and set out in the following instruments:
- the Universal Declaration of Human Rights (UDHR), the United Nations [6] (signed on December 10, 1948); [7]
- the International Covenant on Civil and Political Rights (ICCPR), the United Nations (ratified on October 23, 1986); [8]
- the Optional Protocol to the International Covenant on Civil and Political Rights, the United Nations (ratified on August 22, 1989);
- Convention on the Elimination of All Forms of Discrimination against Women, the United Nations (ratified August 5, 1981);
- the Optional Protocol to the Convention of the Elimination of Discrimination against Women, the United Nations (ratified November 12, 2003);
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations (UNCAT) (ratified June 26, 1987);
- the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations (accession April 12, 2012); and
- the Bangkok Declaration, the Association of Southeast Asian States (ASEAN) (ratified August 8, 1967).
Pursuant to the above, the Philippines has legal obligations to adopt measures that effectively ensure rights to liberty, freedom from arbitrary detention, freedoms of expression, association and assembly, rights to participate in public affairs, to the presumption of innocence, pre-trial release, the right to fair trial by a competent, impartial and independent civilian court and freedom from torture and other cruel, inhuman and degrading treatment or punishment (ill treatment).
The Philippines was elected to the UN Human Rights Council in October 2018 with its membership on Council to commence 1 January 2019. As a member of the UN Human Rights Council, the Philippines has specifically accepted a heightened duty to, “uphold the highest standards in the promotion and protection of human rights” and to “fully cooperate with Council”. [9]
The Constitution of the Republic of the Philippines (Constitution), [10] in the Preamble affirms the rule of law as the governing principle:
…secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
Article III of the Constitution sets out the Bill of Rights whereby Section 1 stipulates that “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws” and Section 18 (1) stipulates that “No person shall be detained solely by reason of his political beliefs and aspirations.”
Further, Republic Act No. 9745, An Act Penalizing Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Prescribing Penalties, [11] states in Section 2(d) that it is a policy of the Philippines:
To fully adhere to the principles and standards on the absolute condemnation and prohibition of torture as provided for in the 1987 Philippine Constitution; various international instruments to which the Philippines is a State party such as, but not limited to, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDA W) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and all other relevant international human rights instruments to which the Philippines is a signatory.
Given the Philippine’s international human rights obligation, as set out above, the arrests, detentions, and possible torture constitute the illegitimate use of criminal law powers and contravene provisions of the UDHR, ICCPR, UNCAT and the Constitution. Violated by the arrests, detentions, and torture and ill treatment are protected rights to: liberty, freedoms of expression, association, assembly and to participate in public affairs, pre-trial release, freedom from arbitrary detention, the presumption of innocence, representation by legal counsel, fair trial by a properly constituted court that is impartial, competent, and independent and freedom from torture and ill treatment.
Arrests, detentions contravene rights and are arbitrary
The UN Working Group on Arbitrary Detention (WGAD) has defined detention as arbitrary when one of more of the following conditions exists. [12]
- Category I – It is clearly impossible to invoke any legal basis justifying the deprivation of liberty;
- Category II – The deprivation results from the exercise of the rights or freedoms guaranteed by, inter alia, Article 19 of the UDHR and ICCPR;
- Category III – When the total or partial non-observation of international norms relating to the right to a fair trial as specified by the UDHR and ICCPR are of such gravity as to render the deprivation of liberty arbitrary.
The UN Human Rights Committee (HR Committee) has determined that ‘arbitrariness’ “is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law…”[13]
The arrests and detentions of the Peasant Activists are arbitrary in that they resulted solely from the exercise by the Peasant Activists of rights to expression, association, assembly, and to participate in public affairs which are rights guaranteed by the UDHR, ICCPR, and the Constitution. Hence, the detentions meet the condition of arbitrary detention and are classified as arbitrary under Category II.
Detention violates rights to presumption of innocence and pre-trial release [14]
International human rights law standards state that a person may only be arrested and detained “pursuant to a warrant, on reasonable suspicion or for probable cause.” [15] As in the cases of the Peasant Activists, where individuals have been arrested without warrant or summons and kept in detention without a court order, it is likely that the Philippines would be been found to have violated the right to freedom from arbitrary arrest and detention as set out in ICCPR Article 9(1).
The WGAD has determined that, “any deprivation of liberty without a valid arrest warrant issued by a competent, independent and impartial judicial authority is arbitrary and lacks legal basis.” [16] The arrests and detentions in these cases have also been carried out without the required judicial oversight and are therefore arbitrary and lacking in legal basis.
Under international law, which has been confirmed by the HR Committee, pre-trial detention is considered an extraordinary measure that may only be used when a competent court has determined that there are established risks of flight, reoccurrence or interference with evidence and that detention is the only means to prevent the established risk(s) to release. Persons arrested on a criminal charge must not be kept in custody pending trial unless there is sufficient evidence that makes it necessary to prevent such person from fleeing, interfering with witnesses or posing a clear and serious risk to others and there are no other alternatives.
The Philippines police and Army forces conducted the arrests without warrants and the detainees have been denied access to a competent court to determine the legality of detention and the right to pre-trial release. The manner of the arrests and detentions therefore violate rights to liberty, the presumption of innocence and to pre-trial release.
Conclusion LRWC calls on the Government of the Philippines to comply with its international law obligations arising from, inter alia, the UDHR, ICCPR and the Constitution and to:
- Immediately release from detention Edzel Emocling and Rachel Galario;
- Discontinue all court prosecutions and proceedings against Yolanda Diamsay Ortiz, Eulalia Ladesma, Edzel Emocling, and Rachel Galario;
- Withdraw any current charges against Yolanda Diamsay Ortiz, Eulalia Ladesma, Edzel Emocling, and Rachel Galario;
- Ensure an independent investigation of the allegations of excessive use of force by CIDG and other police and 7th Infantry Division forces during the arrests of the Peasant Activists on October 13, 2018 and during detention;
- Ensure lawful prosecutions before civilian courts of all those identified by the investigation(s) as suspected perpetrators;
- Comply with the Philippines’s international and domestic law obligations to respect and ensure the rights of people subjected to criminal proceedings, including those named in this letter, to: liberty, freedom from arbitrary detention, the presumption of innocence, pre-trial release, trial before an independent, competent and impartial civilian court, and to be fully represented by counsel of choice;
- Ensure that the people named and others are not arrested, detained or prosecuted for exercising internationally protected rights to freedoms of expression, association and assembly and the essential democratic right to participate in public affairs by engaging in protests. [17]
LRWC looks forward to your response.
Sincerely,
Maree Bullivant, Member, LRWC
Farhad Ghaseminejad, Member, LWRC
Copied to: Office of the United Nations High Commissioner for Human Rights
InfoDesk@ohchr.org
Mr. Michel Forst
Special Rapporteur on the situation of human rights defenders
defenders@ohchr.org
Prof. Nils Melzer
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
sr-torture@ohchr.org
Ambassador Rosemary McCarney
Canada’s Ambassador and Permanent Representative to the United Nations
genev-gr@international.gc.ca
Her Excellency Petronila P. Garcia
Ambassador of the Philippines to Canada
embassyofphilippines@rogers.com
Ms. Maria Andrelita S Austria
Philippine Consul General in Vancouver
vancouverpcg@telus.net
Edre Olalia
Secretary General, National Union of Peoples’ Lawyers Philippines
nupl2007@gmail.com
[1] 2 Suspected Female NPA Rebels out on bail 2 Others Remain in Jail October 17, 2018. Available at: https://newsinfo.inquirer.net/1044149/2-suspected-female-npa-rebels-out-on-bail-2-others-remain-in-jail
[2] Four women peasant advocates arrested, possibly tortured in Nueva Ecija, October 16, 2018. Available at: http://www.karapatan.org/Four+women+peasant+advocates+arrested%2C+possibly+tortured+in+Nueva+Ecija
[3] 4 suspected female NPA rebels captured in Nueva Ecija October 14, 2018. Available at: https://newsinfo.inquirer.net/1042627/4-suspected-female-npa-rebels-captured-in-nueva-ecija
[4] Attacks vs activists escalate as 9 are arrested, 2 declared missing in the past week October 19, 2018 Available at: http://www.karapatan.org/Attacks+vs+activists+escalate+as+9+are+arrested%2C+2+declared+missing+in+the+past+week
[5] Ibid.
[6] The Philippines joined the United Nations on October 24, 1945.
[7] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Articles 7-11, available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 12 December 2014].
[8] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations Treaty Series, vol 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 12 December 2014].
[9] Resolution adopted by the General Assembly, 3 April 2006, A/RES/60/251, at para. 9.
[10] Constitution of the Republic of the Philippines, of 1987, available at: https://lawphil.net/consti/cons1987.html [accessed October 28, 2018].
[12] Republic Act No. 9745, An Act Penalizing Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Prescribing Penalties Therefor, available at: https://www.lawphil.net/statutes/repacts/ra2009/ra_9745_2009.html [accessed October 28, 2018].
[12] Fact Sheet No. 26, The Working Group on Arbitrary Detention.
[13] Mukong v. Cameroon, Communication No. 458/1991, UN Human Rights Committee (HRC), 21 July 1994, at para. 9.8.
[14] See Pre-Trial release and the right to be presumed innocent: A handbook on international law rights to pre-trial release, Lois Leslie, LRWC, 2013. available at http://www.lrwc.org/handbook-pre-trial-release-and-the-right-to-be-presumed-innocent/
[15] African Commission on Human and Peoples’ Rights. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. Banjul: African Commission on Human and Peoples’ Rights, 2003, at para. M(1)(b). Available at: http://www.achpr.org/files/instruments/principles-guidelines-right-fair-trial/achpr33_guide_fair_trial_legal_assistance_2003_eng.pdf.
[16] Opinions adopted by the Working Group on Arbitrary Detention at its eighty-first session, 17–26 April 2018 Opinion No. 10/2018 concerning Waleed Abulkhair (Saudi Arabia), A/HRC/WGAD/2018/104 , 4 July 2018 at para. 46.
[17] See The Right to Dissent: A guide to international law obligations to respect, protect and fulfill the right of all persons to participate in public affairs by engaging in criticism, opposition and dissent, Lois Leslie for LRWC, March 2017 [The Right to Dissent]. Available at: http://www.lrwc.org/library/know-your-rights-index/right-to-dissent/.
