PHILIPPINES: Council Urged To Ensure That Justice Is Delivered Concerning The Maguindanao Massacre
The Asian Legal Resource Centre (ALRC) wishes to bring to the attention of the Human Rights Council (HRC) the ongoing
situation of impunity in the Philippines, illustrated by the failure by the government to take appropriate action in the
widely-reported massacre of 57 persons including 30 journalists that took place in Ampatuan, Maguindanao province,
Mindanao, on November 23, 2009. This is the single incident in which the largest number of journalists has ever been
killed.
The massacre targeted a group that were travelling to file documents for the registration of Esmael Mangudadatu,
challenging the incumbent governor, a member of the Ampatuan clan, in the race to be elected local governor. The party
included numerous journalists accompanying Mangudadatu’s wife, as well as two human rights lawyers. They were halted by
a group of armed men and executed.
The government of the Philippines’ elected local officials and its security forces were involved in perpetrating this
atrocity, now known as the “Maguindanao Massacre” which represents the worst election-related violent incident in the
country's recent history. The ALRC urges the Council to react to the interventions made by several Special Procedures
regarding the massacre and to urge the government of the Philippines to ensure that this event is effectively
investigated, with those found responsible brought to trial and punished in accordance with international norms and
standards.
A member of the Ampatuan family, Datu Andal Ampatuan Jr., was identified as the principal suspect in the massacre, and
was arrested on November 26, 2009. On February 5, 2010, the Department of Justice (DoJ) indicted 197 individuals
concerning the massacre. 15 of them were members of a powerful political clan, the Ampatuans; 62 were policemen; four
were soldiers and the remainder included members of several militia forces. The list of those responsible, which
includes powerful local officials and top police commanders, makes this a crucial test of the rule of law in the
country, as previously State agents have typically enjoyed complete impunity concerning a wide range of human rights
violations, including hundreds of alleged extra-judicial killings.
The list of those indicted is telling of the state of law enforcement and the rule of law in the Philippines. State
agents function contrary to their lawful obligations to protect lives, and the liberty and property of the country’s
citizens. Instead, they serve the interests of the local political elite. The massacre also shines a light on the
dangers associated with the government's policy to recruit and train civilians as a “force multiplier” to counter
insurgencies, as these have become private armies for local politicians.
The police and the military should also be held to account for failing to protect the lives of the victims. Both Police
Chief Superintendent Faisal Ampao Umpa, the regional director of the Philippine National Police (PNP) in the Autonomous
Region of Muslim Mindanao (ARMM) and that by Colonel Medardo Geslani, commanding officer of the 601st Brigade of the
Philippine Army (PA), denied requests for security escorts by the Mangudadatus and the journalists in their convoy.
Geslani's senior officer, Major General Alfredo Cayton, commanding General of the Army's 6th Infantry Division, insisted
that it was safe for the convoy to travel when justifying the military’s refusal to provide security. This illustrates
the absence of even a rudimentary protection mechanism in the country, and even suggests complicity at the highest
levels. While senior police and military officials were refusing to provide protection, their men were directly
participating in the pre-meditated executions. It is essential for full and impartial investigations into this massacre
to establish responsibility through the chain of command. Given the authorities in the Philippines clearly poor track
record in conducting any such investigations and prosecutions, there is a clear role for the international community to
play.
Investigations will likely face numerous hurdles, as the policemen involved also attempted to cover up the massacre by
deliberately failing to record details concerning the massacre in their daily log, according to the findings of a
prosecution panel. The exhumation and recovery of bodies was reportedly also carried out in ways that have destroyed
vital forensic evidence.
The government’s response to the massacre was, in initially, one that further threatened fundamental human rights rather
than ensured the delivery of justice. The declaration by the President of the Proclamation, No. 1959, placing the
province's 36 Municipalities (except the areas previously identified as having been occupied by Moro rebels) under
Martial Law and suspending habeas corpus, resulted in numerous arbitrary arrests and detention, illegal searches of
persons and properties, many of whom had nothing to do with the massacre.
Proclamation 1959 has risked making any legal action taken against those accused of being involved in rebellion, as is
the case with those charged in the Maguindanao massacre, including evidence collected during the period of martial law,
legally and procedurally flawed. This has placed the prosecution of those responsible in doubt.
Added to this, there is legal ambiguity concerning the crime of rebellion. For example, in a case involving the
so-called "Tagaytay Five," the Regional Trial Court (RTC) in Tagaytay City ruled, in August 2008, that the prosecutors
failed to prove that the crime of rebellion existed at all or had been committed, resulting in their case being
dismissed and their release from jail. The court held that: "by its nature, rebellion is a crime of the masses or
multitudes involving crowd actions done in furtherance of a political end." In order for the crime to legally exist
"both the purpose and overt acts are essential components of one crime, without either of them the crime legally does
not exist."
The act of taking up arms and the presence of "heavily armed groups" in order "to resist government troops" from
affecting arrests or conducting searches - the arguments used as the justification by President Gloria Macapagal-Arroyo
in declaring martial law - did not meet the fundamental elements that constitute the crime of rebellion. So, legally,
the crime never occurred and prosecution in court is inappropriate. The Ampatuans, a political clan accused of
involvement in the November 23, 2009 Maguindanao massacre, were not taking up arms to grab power from the government.
They, and their hundreds of supporters, are the people in power. The crime of rebellion was concocted by the government
to justify the constitutionality of martial rule.
Grabbing power from the government was not the Ampatuan's political end, nor was it the purpose of their heavily armed
supporters. They are, as shown by their overt acts, either resisting arrest or obstructing the security forces from
arresting and conducting searches as part of a police investigation. This is thus a purely criminal matter that should
be dealt with accordingly by the police. Thus, the prosecution of the accused in the rebellion case was instead a
political move by the Department of Justice, one of the agencies that openly defended martial law, to justify
Proclamation 1959. This was never truly about prosecution of the crime of rebellion or for violations of criminal law.
Although Proclamation No. 1959 has now been lifted, Proclamation No. 1946, which was issued on 24 November 2009, placing
the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato under a state of emergency, remains in effect. The
military establishment has recommended prolonging the state of emergency until the winners of the May 2010 elections
assume office in June 2010. However, under the state of emergency, human rights have been suspended and violations of
rights are taking place on a daily basis. The ALRC urges the government of the Philippines to immediately lift this
state of emergency and ensure the safety of its citizens through legal means that respect human rights.
The ALRC also urges the government of the Philippines to dismantle all non-State armed groups provided with
law-enforcement powers, as the use of such groups has enabled local politician to maintain private armies, leading to
numerous incidents of violence, including the massacre in question here. Specifically, the government must dismantle the
police' Civilian Volunteer Organization (CVOs) and the army's Civilian Auxiliary Force Geographical Units (CAFGU). Their
continuing existence to this day, despite repeated local and international demands to have them dismantled, is an
indicator of the government's tolerance of vigilantism, for which it must make amends.
The government should also without further delay implement the recommendations made in the Melo Commission Report in
January 22, 2007, notably that calling for the enactment of a “Special law for strict chain-of-command responsibility.”
The government's failure to do so despite the passage of three years has contributed to the continuing impunity with
which the police and military establishment conduct widespread human rights violations. The Maguindanao Massacre should
act as a test case to assist in the establishment mechanisms and laws to ensure that such atrocities cannot occur again.
The best way to ensure future protection of human rights is to tackle impunity in the present.
The government should also review the existing processes through which police officials are selected and appointed to
head provincial and town police commands. Presently, local executives have had control over the appointment and transfer
of police commanders in their localities, leading to the police being heavily politicised.
There remain significant concerns that as international turns away from the Philippines in the aftermath of the
massacre, that the early steps taken by the government, including the arrest and indictment of 197 suspects in the
massacre, will not progress into successful prosecutions and the effective delivery of justice. It is imperative for the
future of human rights that justice be done and be seen to be done concerning this high-profile case. Anything less than
fair trials establishing and punishing all of those responsible for the massacre, regardless of their rank in the
establishment, will have a seriously deleterious impact on the struggle to establish human rights and combat impunity,
as well as the freedoms of expression and the media, in the Philippines.
The Human Rights Council is therefore urged to take all measures necessary to ensure that credible, impartial
investigations are conducted, prosecutions are carried out in line with international standards and those responsible
receive adequate punishment and the relatives of those killed in the Maguindanao Massacre receive adequate compensation.
This is important not only as concerns the case itself, but also for the prospect of improvements to the protection of
human rights in the Philippines in general for years to come.
ENDS