A Statement from the Asian Human Rights Commission
19 December 2012
Today, the Asian Human Rights Commission (AHRC) released an appeal about the fabrication of charges on Roy Velez and Amelita Gamara, two known leaders helping urban poor communities in Metro Manila who are victims of forced evictions and violent demolitions. A local court in Labo, Camarines Norte issued an order to arrest them for charges of murder for their alleged involvement in the attack on a camp that killed four soldiers on April 29, 2012.
When this attack happened, Roy and Amelita could not have been physically present at the incident. Roy has witnesses to prove his defense of alibi that he was physically present in the Silverio compound, Paranaque City , on the day the attack happened. Also, Amelita also has witnesses to prove that she was in Metro Manila on the day and days before the attack happened. Roy and Amelita, nevertheless, were charged for murder and order for their arrest issued on October 18, 2012.
As in earlier cases of the fabrication of charges, Roy and Amelita were not aware about the charges laid on them until the court issued an order for their arrest. It was only after the court issued orders to arrest them that they were able to respond to the allegations. This pattern no longer surprises the AHRC. In fact, it is very common practice of prosecutors to indict human rights and political activists with serious criminal offenses, most of the charges have no recommendations for bail, regardless of whether the merits are sufficient to indict or the requirement of “probable cause” was met. The court, too, issued arrest orders with no regard whether procedures and evidence are observe by prosecutors.
It is common that most activists only learn that they had been charged and that they are subject of arrest when the court issues order to for their arrest. Others falsely charged would know only when they secure police clearance, when they run for public office, when they leave the country, and in other cases. In most cases, it is the journalists and people who are not party to the case who informs the accused that arrest orders has been issued on them. When this happens, most of the accused are forced to go into hiding, not to avoid the charges or because they are guilty, but because of so much uncertainty.
In Philippines , the worst condition that a person can be in is when he or she is charged in court. Investigation and prosecution of cases takes years. The AHRC had documented numerous cases, like the case of Gensan 3, the Abadilla Five, Southern Tagalog 72, Tagaytay Five, where the accused had been exonerated after years of trial. However, the innocence or guilt does not matter at the early stage of prosecution of cases. What matters to the prosecutors, the police and the court is that someone must be charged, arrested and detained, and whether they would be declared innocent or guilty later does not concern them.
On paper, notably the Revised Rules of Criminal Procedure, it is clear that before any individual is indicted in court that they should be informed of the charges against them, that they should be given opportunity to make their defence; and that the prosecution, based on numerous jurisprudence, should exercise “due diligence”. And this includes the element of “probable cause” has to be meet. This rule requiring prosecutors to observe has been established, not only for procedural reasons, but to protect the very fundamental Constitutional and Statutory rights of the Filipino people. This rule should have been the gatekeeper of arbitrary and wrongful prosecutions, and the role of the prosecution department is to take primary responsibility to upheld this.
However, for many years, as in the case of Roy and Amelita, prosecutors routinely, systematically and on a widespread scale, indict persons whether or not they were informed of the charges or have given replies to the allegations. This Rule on Criminal Procedure, however, is inherently inquisitorial and arbitrary in operation. Under the rule, to be informed and to reply to the charges is not treated as a “fundamental right” of the accused that is required at the minimum to ensure fair trial; but, as a matter of “procedural right” that can be abrogated by the prosecution and the court. The result is arbitrary issuance of arrest and detention orders.
This explains that regardless of the innocence or guilt of the persons, orders of arrest from court such as this justifies action of the police to arrest the person. Here, going into hiding is the workable solution for many accused. It is not because they are guilty, but for them to have the opportunity to make their own legal defence. It is the inability and difficulty of the accused to make their own defence that pushes them into hiding; however, again under the country’s jurisprudence “fleeing is an indication of guilt”. A person falsely charged ends up in a difficult situation to choose either to hide to make a defence or to show up to end up in jail for years.
Ending up in jail not knowing when they would be released–either by way of them being exonerated from charges or bail, is the most difficult decision for a human rights and political activist to make. Here, it is not only a matter of one person’s quest to prove innocence, but also to protect and ensure that his or her human rights work would carry on. In some places detention of activists means fear and results to breakdown of one’s work. In Sulu, the arrest and detention of Temogen “Cocoy” Tulawie has already frightened human rights and political activists in his place. His accuser, Governor Abdusakur Tan, a powerful and influential politician in Sulu, succeeded in crushing any form of dissent in Sulu by ensuring that Tulawie is in jail.
For many years, the AHRC has documented numerous cases showing an ongoing pattern of widespread and systematic abuse and the use of legal procedures, particularly by the prosecutors under the Department of Justice (DoJ), no longer for the purpose of prosecuting those who committed the criminal offense against the State, but to justify their politically motivated arrest and detention. The prosecutors now look at, not on the merit or the probability the crime had been committed as they ought to be, but ensures the process in the criminal prosecution is complied with–legally or otherwise.
The AHRC is deeply concerned about this pattern and urges the government of the Philippines , notably the Department of Justice (DoJ), to correct this wrong. The prosecutors who are responsible and complicit in these acts of the fabrication of charges must be held accountable. The DoJ must uphold its primary responsibility to protect the fundamental rights to liberty of the people, instead of using its power as a political tool to target a particular group of people–notably human rights and political activists.
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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.