Why the Melo Commission was doomed to fail (and why victims refused to cooperate)

Posted: February 2, 2007 in Socio-Political

Bagong Alyansang Makabayan

January 30, 2006


On the 23rd death anniversary of Ninoy Aquino’s Assassination, Arroyo vowed to break the cycle of violence. “I have directed the Melo Commission to leave no stone unturned in their pursuit of justice…the victims and their families deserve justice to be served,” she further said. 
The Gloria Macapagal Arroyo-initiated Melo Commission recently announced that it had completed its findings on the spate of extrajudicial killings in the country. The investigating body is said to have submitted its report to Malacañang in time for Arroyo’s trip to Switzerland for the World Economic Forum. Former Supreme Court Associate Justice Jose Melo said the Commission is leaving it to Arroyo if she wishes to disclose the findings and recommendations of the body.

In media interviews, Melo indicated that military personnel were involved in the killings and even singled out notorious retired M/Gen. Jovito Palparan as responsible for the killings based on the principle of “command responsibility.”
However, the Melo Commission did not go beyond Palparan in terms of explaining why these killings occur. There was no mention of any national policy nor of the involvement of high government officials such as Arroyo who many believe to be sanctioning the killings through the all-out war policy.

If the implication of Palparan and some other military officials is the best that the Melo Commission can come up with, then critics of the administration are vindicated in their earlier position criticizing the Commission.
The Melo Commission seemed to be doomed by design. Bayan believes that from the beginning, the Commission did not live up to the international standards required of an independent investigating body. It comes as no surprise therefore that the Melo report, even if not yet released in full, is unsatisfactory to many in the human rights community. 

Formation of the Commission

It took 749 lives and a massive, staunch denunciation by international human rights organization before the president was moved to form an investigative body. On August 21, 2006, Arroyo announced the establishment of the Melo Commission.
Under Section 2 of the Presidential Administrative Order (AO) 157, The Commission shall be composed of retired Supreme Court Associate Justice Jose Melo as chairman, National Bureau of Investigation Director Nestor Mantaring, Justice Department’s Chief State Prosecutor Jovencito Zuño and Nelia Gonzales of the University of the Philippines’ Board of Regents, Atty. Rogelio Vinluan as General Counsel and a representative from the civil society to be appointed by the President. Catholic Bishop Camilo Gregorio refused the appointment and was replaced by Butuan Bishop Juan de dios Pueblos. The commission shall serve as a special Commission of Inquiry to address media and activist killings in the Philippines.

Concerned that members of the security forces may have been directly involved in the killings, either by having tolerated them or have been complicit in them, the AI urged the Philippine government to adopt its 14-Point Program for the Prevention of Extrajudicial Executions, based on the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. The AI suggestion was contained in the memorandum given by AI secretary Irene Khan to Arroyo during a meeting in London on Sept. 14. Basically, the memorandum was intended to guide the establishment of an investigating commission according to international standards.
Amnesty International highlights the following guidelines and principles (in italics), which it believes, will help ensure the credibility and effectiveness of a commission’s efforts and recommendations,

1. Investigation, Ratification of human rights treaties and implementation of international standards
The government should ensure that all complaints and reports of extrajudicial executions should be investigated promptly, independently by a body which is independent of those allegedly responsible and has the necessary powers and resources to carry out the investigation.

Judging from its composition, the Melo Comm. cannot be considered independent. Former Justice Secretary Melo was an Arroyo appointee in the board of the Philippine National Bank. Mantaring and Zuño were both from the Department of Justice (DoJ) who, together with Secretary Raul Gonzales are directly under the Office of the President.  The Justice Department of which the two belong has been involved in the filing of rebellion cases against known Arroyo foes and thus cannot be considered impartial.

2. Mandate
The Melo Commission is mandated to find the root causes of the extrajudicial killings and to “put an end to these once and for all”. Finding long-term solutions is also among the recommendations of AI as stated in its memorandum.
Initial statements from former justice Melo indicate that the Commission seemed to stop at Palparan and some other military officials when confronted with the issue of who is responsible for the killings. No other high government official has been implicated, giving the impression that the Commission may be shielding the Arroyo administration from any culpability.
It is easy to see that the killings have continued even after Palparan retired form active duty. This clearly shows that the killings go beyond Palparan and are part of a bigger national policy. Having failed to correctly point this out, the Melo commission cannot possibly find a long term solution to the killings.

B. Powers

1. Investigatory powers

AI asserts that the commission can lose its credibility by referring merely to the investigations of the agencies accused of human rights violations – such as the military or the police – rather than the commission doing its own investigation. For lack of any other source of information, the Melo Commission has relied on the data provided by the PNP’s Task Force Usig, and in so doing, reaffirmed the findings of the task force. The Melo report basically upholds the PNP and AFP line that the killings were perpetrated not just by the military but by the NPA and armed goons of the politicians, an obvious effort obfuscate the accountability of the State.
From the very beginning, we have asserted that TF Usig lacks the credibility to probe political killings and this is already evident in the disparity of TF Usig’s death toll and Karapatan’s tally.  TF Usig only counts 110 political killings since 2001 when Arroyo came into power. Karapatan’s figures, meanwhile, recorded 763 during the same period. Philippine

Based on TF Usig’s accomplishment report, out of the 110 killings of activists the unit has counted since Arroyo assumed power in 2001, 36 are already the subject of court cases and are considered closed.

Of these 36 killings, 16 were allegedly a result of communist purging. Only six killings were linked to the military and, of these, only four are now the subject of court cases.

In media killings, the task force said 21 cases have been filed out of 26 murders it investigated.

Also in their report, the task force said it found “no government policy — official or unofficial, formal or informal, written or covert — to suppress political dissent and fundamental Constitutional freedoms, much less torture or murder critical journalists, party list (and) militant (group) members or the political opposition.”
Under the Administrative Code of 1987, the Melo Commission is empowered to summon witnesses, to take testimony or evidence relevant to its investigations, and to deputize the Armed Forces of the Philippines (AFP), the National Bureau of Investigation (NBI), the Philippine National Police, the Department of Justice (DOJ) and any other enforcement agency to assist it in the performance of its duties.

Although the Melo Commission has the power to summon witnesses, it does not have the power to cite for contempt the witnesses who will ignore or refuse to answer it’s summon. In the case of Palparan, he appeared before the inquiry after snubbing two summons. Taking the stand on Sept.19, Palparan said, “I invoke the right to remain silent.”

It remains to be seen if the Melo Commission also subpoenaed relevant policy documents such as the Oplan Bantay Laya, an insidious plan for eliminating the Left in the Philippines. There is no mention in news reports about overarching government policies which international groups believe to be the reason for the widespread killings.

2. Technical expertise

Amnesty International recommends that:

The Melo Commission should be able to count on the services of expert in the relevant fields including psychology, pathology, forensic anthropology, and ballistics. In particular, forensic expertise should be on hand at short notice so that effective investigation and recording of post mortem investigations can be done efficiently, increasing the likelihood of bringing perpetrators to justice. The methodology to be employed in autopsies should conform to the United
Nations Principles relating to the effective prevention and investigation of extralegal, arbitrary or summary executions.( 3) Where the investigation is dealing with unlawful killing, the Commission should have the authority to prevent burial or other disposal of the body or bodies until and adequate post-mortem examination has been carried out.

From a technical standpoint, Melo Commission seems ill-equipped to take on serious investigative work. It lacks the competent personnel, technical know-how and equipment to carry out investigations consistent with international standards, not to mention the sufficient funding to conduct such investigations. News reports indicate that the Melo Commission was merely given a P1 million budget, which would only cover administrative expenses.
3. Protection against Death Threats

AI gives guidelines on the protection of witnesses and victims:

Government should ensure that anyone in danger of extrajudicial execution, including those who receive death threats, is effectively protected.
The Melo Commission should have the power to require the relevant authorities to suspend from duty officials and others allegedly involved in the cases of extrajudicial executions under investigation, or to transfer them to other duties where they would have no power over victims or witnesses.

“A problem is that we could not give iron-clad protection to witnesses,” said retired Supreme Court associate justice Jose Melo, in a press conference on November 21, 2006.

In the same briefing, lawyer Rogelio Vinluan, the commission’s general counsel, said the group could not secure the full cooperation from witnesses because it does not have the funds to protect them. Vinluan said the commission could not encourage witnesses to speak out on the cases because their fear for their lives could not be allayed.

Furthermore, the Melo Commission does not have the power to suspend from office those officials considered involved in cases of extrajudicial killings. The suspension of suspected officials creates a favorable climate for witnesses to come forward as this reduces potential cover-ups and retaliation from suspected officials. A significant number of activists have been killed since the Melo Commission was formed yet not one single military or police official has been suspended on account of any recommendation from the commission. 
Referring to Section 8 of AO 157, the Melo Commission does not have a specified allocated budget and therefore makes it even difficult for the commission to put up a witness protection program. The administrative order states that the Office of the President will be providing the funds for its operations. Initial budget of the Melo Commission was pegged at P1M, far cry from the government spending of an addition P1 billion for all –out war, P10 million for the consultative commission on constitutional changes, and P5 million for the charter change advocacy commission. 

Commission on Human Rights commissioner in charge Quintin Cueto branded Melo’s function as redundant to the CHR. Cueto said, “(Government) should have supported us and gave us more logistics for our witness protection program.”

C. Operations and Procedures

1. An open and public inquiry

As a matter of principle, all aspects of the work of a commission of inquiry should be made public. So far as possible, the media and public should be given access to the proceedings and to the evidence on which the Melo Commission bases its findings.

On September 9, Bayan members were prevented from entering the venue of the proceedings. They were blocked by security personnel upon Esperon’s orders.

2. A victim-centered approach

International standards on the treatment of victims of crimes under international law and other serious crimes focus on three key state responsibilities: to treat victims with humanity; to provide effective protection mechanisms; to ensure effective support.

The Melo commission violated the basic tenets of investigation when it summoned the suspects to testify first. However, Melo denied criticisms that it was calling only military and police officials to testify. They invited the families of missing UP students Karen Empeño and Sherlyn Cadapan to testify first but when the families turned down the invitation, Melo said, “we had to call our first available witnesses.”

When asked to comment about Melo’s statement, the families of the victims pointed out that the invitation came after three hearings of the commission when the suspects have already testified.

Evangeline Hernandez, mother of slain activist Benjaline Hernandez and head convener of HUSTISYA averred, “The Commission has yet to inform us and the public of its procedures for investigation but it has already issued statements that virtually clear Palparan and Esperon. How can they expect us to participate in this kind of process?”

In its first hearing on Sept. 7, Melo had AFP Chief of Staff Hermogenes Esperon on the stand. It was then that Esperon tagged Bayan Muna representatives Teddy Casiño and Satur Ocampo as “enemies of the state”. Esperon used the Melo commission as a platform for psywar and intrigues against the progressive movement.

3. Period of Operation

Although it is important to indicate a time limit for Commissions of Inquiry to end their operations and report on their findings, it is equally important to make that time limit a realistic one.

To some extent, the problem of length of time can be addressed by frequent public reporting and interim conclusions and recommendations. Considering the length and complexity of its investigation, Amnesty International recommends that the Melo Commission publishes regular
and frequent interim reports outlining progress made and obstacles encountered. This would help establish and maintain effective communication with the Philippine authorities, civil society

The work of a commission should not prejudice current or future criminal proceedings.
On December 19, 2006, four months after its formation, the Melo Commission announced that it had completed its report and was set to submit its findings to Malacañang. Towards the end of January 2007, the report was submitted to Malacanang. Curiously enough, the submission was timed for Arroyo’s trip to Switzerland for the World Economic Forum. Perhaps it was intended to assuage international concern over the killings. The last time Arroyo went to Europe, she was confronted with a volley of criticism from the European Union.
In its memorandum to the Philippine government, AI is anxious that a short time limit may be deficient for the commission to reach a thorough conclusion. By the end of its tenure, the commission in its final report is expected to come up with recommendations to the President with regard to reparations to the families of the victims; present important recommendations for remedial actions, including appropriate prosecutions and legislative proposals.

Melo admitted that without cooperation from leftist groups and families of the victims, its findings would end up with one-sided report. “…we will have to base our findings on the testimonies of the witnesses who have appeared,” he declared in a press conference.  

The haste in the deadline only reinforces the view that the Melo Commission is a body designed to deodorize the Arroyo government and shield it from any responsibility in the killings. The formation and the recommendations of the Commission seemed to be timed with international gatherings wherein Arroyo hopes to parry harsh criticism from foreign governments and institutions.
The Melo Commission was formed two weeks before Arroyo left for a European tour in September 2006. The submission of the report was timed for Arroyo’s World Economic Forum trip in Switzerland.

In spite of vows to serve justice to the victims and uphold humanitarian causes, the Melo Commission on the other hand seems to be paving the path for the whitewash of the investigation into the killings and the ultimate absolution of Mrs. Arroyo.

State-responsibility is still the issue. Anything short of this would be a great injustice.





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