Atty. Jenny Domino, Non-Resident Fellow for Human Rights of the Stratbase ADR Institute
Since martial law, the Philippines has come a long way when it comes to protecting human rights. On paper, our human rights regime is robust. The 1987 Constitution is a legal framework motivated by human rights, its drafting having been framed by our experience of martial law. We have ratified human rights conventions and enacted legislation to further protect us from state abuse and atrocious crimes such as torture, genocide, and crimes against humanity.
Apart from legislation, the Constitution established democratic institutions to control the exercise of state power that would, in turn, affect the exercise of our rights. It provided for an elaborate scheme of checks and balances as well as the separation of powers among the different branches of government. It established the Office of the Ombudsman, which has the broad power to prosecute public officials for any administrative and criminal offense committed through abuse of official position. It also created the Commission on Human Rights (CHR), the independent body mandated to investigate human rights abuses.
We celebrated these positive developments on Human Rights Day (Dec. 10). At the same time, we must also ask if these guarantees have become a lived reality for the people.
Duterte’s “war on drugs” has exposed the inefficacy of some of these guarantees. Since Duterte came to power, more than 30 human rights lawyers have been killed. Staunch critics have been arrested, ousted, threatened with legal proceedings, and harassed or trolled on social media. Journalists are no less safe.
It was only last year that Congress moved to reduce the annual budget of the CHR to P1,000. This can be construed as an effort to constructively abolish the only institution that could provide independent, accurate documentation of the killings arising from the drug war.
Another possible loss is the state’s withdrawal from the Rome Statute. If this happens, it gives the appearance of the state’s unwillingness to be held accountable amid allegations of crimes against humanity. The pending petition before the Supreme Court on the constitutionality of the withdrawal will thus test how real our commitments are to human rights accountability.
NO ACCOUNTABILITY FROM THE POWERFUL
Just less than two weeks ago, Kian delos Santos’s killers were convicted by the Caloocan Regional Trial Court for his death. This is a cause for celebration in a country notorious for impunity. However, some believe that the cops who were convicted are just scapegoats for the real masterminds of the drug war. Notably, the drug war provided the backdrop for Kian’s murder. And at present, there is still no person most responsible for the drug war who has been held accountable for the thousands of civilian deaths arising from the government’s anti-drug campaign.
We have also seen impunity in action in the past month. The recent Sandiganbayan conviction (but not really) of Imelda Marcos and the acquittal (but not really) of Bong Revilla arguably show this. These narratives are consistent with the country’s track record to let powerful people off the hook.
A MORE POWERFUL CHR
In connection with its primary mandate to investigate human rights abuses, the CHR can issue subpoenas addressed to the relevant government agency for the disclosure of information on matters subject of its investigation. However, should the agency fail to comply, the CHR does not have the power by itself to issue a contempt order. It must petition the relevant court for this remedy.
The weak sanction that backs up the CHR’s power of subpoena can make the work of the CHR more challenging. It also provides an incentive for noncompliance. After all, noncompliance does not immediately lead to sanction, thanks to an elaborate arrangement for the exercise of its contempt power.
Should the investigation call for prosecution, the CHR is mandated to submit its findings and recommendation to the proper prosecutorial office to act on the matter. Notably, the CHR does not have the power to prosecute, it can only investigate. The authority to prosecute for human rights violations is still lodged with the Department of Justice and the Office of the Ombudsman, which are free to disregard the CHR’s recommendations and conduct their own investigation.
The drug war exposed the flaw of this setup. Since the Department of Justice is an Executive department, it would be challenging to push for accountability for the persons most responsible for the drug war, given that this campaign is motivated by executive policy.
Thus, although the 1987 Philippine Constitution provided for the creation and independence of the CHR, the structural arrangements put in place for its operation are not well-equipped to facilitate accountability.
INSTITUTIONS ARE EQUALLY IMPORTANT
Having our human rights spelled out in our laws is important, but we must equally ensure that an adequate system is in place to make those rights real.
Our democratic institutions must not be prone to capture if the Philippines were to live up to its commitment to promote human rights. This can be avoided by re-examining the framework that makes it excessively hard for some of our institutions to fulfill their duty to protect human rights, and exploring alternatives for those arrangements that facilitate impunity. Perhaps we should focus more on how the processes we have put in place in our system affect the exercise of the rights we have on paper. It is not enough to know what our rights are, we must also make sure we keep them by being vigilant. This is the only way to continue the remarkable progress we have made since martial law.
This article was originally published in BusinessWorld.