Wednesday, June 15, 2016

The Philippines: A Programme of Death

                                                                                            
THE 17TH Congress will spend its maiden year pushing three ambitious items on the incoming Duterte administration’s agenda: the switch to a federal government, restoration of the death penalty and lowering of the age of criminal liability, according to the next Speaker of the House of Representatives, Rep. Pantaleon Alvarez.

Alvarez said that in the first two years of the Duterte administration, he planned to reinstate capital punishment for heinous crimes. During the campaign, Duterte had promised to reinstate the death penalty.

As mayor for over two decades in Davao City, Duterte is known for his iron-fist stance on crime, and is known to have links to “death squads” notorious for killing criminals in the city.

Addressing arguments that the death penalty was not known to be a deterrent to crime, Alvarez argued that: “There’s been no death penalty for many years but crime is still increasing.”

The death penalty was abolished under the 1987 Constitution with the caveat that it may be reimposed, with Congress approval, for heinous crimes. It was reimposed during the administration of Fidel V. Ramos and Joseph Estrada, and stopped during the term of Gloria Macapagal-Arroyo.

The hatchet man appointed by newly elected President Duterte of the Philippines, has outlined a chilling programme for the coming years. There is nothing of democracy, the economy, or civil society, rather the establishment of autocratic rule, death, and extension of criminality to the young. Most extraordinary of all is the open proclamation of extension of the term of a man who has not even yet been elevated to power. 
Of course those who helped achieve abolition of the death penalty in the Philippines are disappointed in the outcome. "The same prisoners as before rot in jails, the same violence prevails across the country, families of victims and the imprisoned are still without assistance". But abolition in itself is not the end of crime, it is rather the beginning of a new era of justice. The respect for human life which replaces the death penalty must be the basis of a new culture of life; if no effort is made then, indeed nothing improves. The failure to build on abolition cannot be blamed on abolition itself.  

Sunday, June 12, 2016

A Well Phrased Letter

Editor:
 
PM Prayut's ordered the legal community and judiciary to ensure that convicted rapists are sentenced to death.

But, we are chronically unable to ensure that we can even clearly identify the guilty parties. Consider the recent high-profile murder/rape of the two British tourists on Koh Tao. There, the court;s guilty verdict relied heavily on DNA analysis by a police lab that hadn't been certified to carry out such analysis, thus making its report inadmissible in court -- and making the case a fiasco.Also, the defendants hadn't been previously informed of the counterpart of their Miranda Rights, so their “confessions” upon which the court relied were inadmissible, per Thai Criminal Code S134/4. Would PM Prayut kill those whose guilt hadn't been proven beyond reasonable doubt? Remember, capital punishment, once carried out, is irreversible.

Also, the worse a crime is, the harsher their punishment should be (to have proportionality). If we execute rapists, what will we do with murderers?
 
Lastly, rapists, knowing that they'd be executed if caught, would be sorely tempted to kill those they've raped, to lessen their chances of being identified. That would not be in society's interests.

We should think, and think again, before applying capital punishment.
 
Best,
 
Burin Kantabutra
 
Bangkok Post, (bold type added)

Sunday, June 05, 2016

5 Dead as Street Executions Start in Philiippines

         Gunmen carry out Duterte-inspired killings of suspects in 3 provinces

                                                                                           

                          Duterte cannot even wait until he is legally installed as President

ILOILO CITY—Five bodies in three provinces in three days.Five men, including a lawyer, fell victims to what appear to be cases of summary execution in Iloilo, Negros Occidental and Negros Oriental from Thursday to Saturday. The killings came as President-elect Rodrigo Duterte, who told police to get drug suspects dead or alive, prepared to assume office at the end of the month.

All share one thing in common—being suspected of involvement in crimes, including the illegal drug trade.
In Negros Occidental, a suspected drug supplier in the northern part of the province was killed by two motorcycle riding men in Calatrava town.
Habib Into, 49, of San Carlos City, who died of multiple gunshot wounds, was at the top of the list of most wanted drug suspects in San Carlos City and other areas, said Supt. Jacob Crisostomo, San Carlos City police chief.
Some 10 grams of shabu and P21,000 in cash were found from Into, police said.
A few hours later, a body was dumped by still unidentified men in Barangay Zone 15, Talisay City, also in Negros Occidental.
The victim, identified as Jeffrey Buencuchillo, 33, was tied and suffered multiple gunshot wounds. His hands were cut off.
Police found in the crime scene a cardboard with a message that read: “I am a member of Akyat Bahay, a thief, an addict. Don’t follow my example because you will be killed next.”
In Negros Oriental, a lawyer was killed while he rode a tricycle to a pension house in Barangay Looc, Dumaguete City, around 10:20 a.m. on Friday.
Rex Agan Perewperew, 38 and a native of Siquijor, was also shot by motorcycle-riding men. He suffered three gunshot wounds in the back.
Police said Perewperew is being investigated for alleged involvement in drugs. He was out on bail for violation of the Comprehensive Dangerous Drugs Act of 2002.
In Iloilo, two men with criminal records were separately found dead with gunshot wounds on Saturday.
The body of Sherwin Taasan, 38, was found by a village watchman around 5:45 a.m. on a grassy lot in Barangay San Vicente in Leganes town, some 11 kilometers north of Iloilo City.
Insp. Gerry Leones, Leganes police chief, said Taasan had six gunshot wounds, including two in the head.
He was found with his hands tied behind his back with a black shoelace.
Taasan, a resident of Barangay Rizal PalaPala II in Iloilo City, had been arrested several times for snatching, Leones said, citing accounts from his live-in partner.
He is also facing a murder case.
Rotchel Navales, common-law wife of Taasan, said Taasan was on board a jeepney bound for Molo District when two armed men flagged down the vehicle and handcuffed him.
“The two said they were police and my husband has a warrant (of arrest) and they handcuffed him,” she told investigators at the Leganes police.
Navales said Taasan was involved in petty crimes and was once a drug user.
“Even though he was a thief, they should not have killed him. We have small children,” said Navales who has seven children with Taasan.
In Iloilo City, a 33-year-old ex-convict was found dead with 11 gunshot wounds around 3 a.m. in Barangay San Jose in Villa Arevalo District also on Saturday. His hands were tied behind his back with a packing tape. Police identified the victim as Lou Facto, a resident of Barangay Sooc, Villa Arevalo. Facto had been recently released from detention for an illegal drugs or firearms case, according to PO2 Rhizan Magoleño, of the investigation section of the Arevalo police stationD.

Philippine Daily Enquirer, June 5


Thursday, June 02, 2016

Statement on the Restoration of the Death Penalty and the "Shoot-to-Kill" Policy in the Phillipines

                                                                 

Statement on the Restoration of the Death Penalty and the “Shoot-to-Kill Policy
The FREE LEGAL ASSISTANCE GROUP [FLAG] strongly opposes the incoming government’s efforts to restore the death penalty and adopt and implement a “shoot-to- kill” policy.   These actions are illegal and unconstitutional, render our legal system impotent and meaningless, and blatantly violate international law.
The death penalty and “shoot-to-kill” policy are anti-poor.
The death penalty is anti-poor. Seventy-three percent (73%) of the 1,121 inmates on death row before the death penalty was abolished in 2006 earned less than ten thousand pesos (Php10,000) a month. Eighty-one percent (81%), in addition, worked in low- income jobs as sales, service, factory, agricultural, transport or construction workers.1 If these numbers are any indication, it is those who live in poverty who will suffer the most if the death penalty is restored.
The poor also bore the brunt of wrongful death penalty convictions. In the landmark case of People vs. Mateo,2 the Supreme Court revealed that seventy-one percent (71%) of the death sentences handed down by the trial courts were wrongfully imposed. This means that 7 out of 10 convicts on death row–-most of them poor–-were wrongfully convicted and did not deserve to be there.
    
The poor are vulnerable to the death penalty because they have no voice, no money, no power, and lack the resources to hire good lawyers. For exactly the same reasons, they will also be vulnerable to the proposed “shoot-to-kill” policy of the President-elect.
The death penalty and “shoot-to-kill” policy cheapen human life.
The death penalty and “shoot-to-kill” policy—coupled with the President-elect’s proposal to employ death by hanging “until the head is completely severed from the body3—reflect a callous disregard for human dignity not befitting a Chief Executive. The Constitution, the Code of Conduct of Public Officials and Employees, and other laws impose on all public servants the duty to observe, respect, and promote human rights. Advocating state-sanctioned killings is not just anti-poor but anti-life.
The death penalty and “shoot-to-kill” policy, moreover, will not deter crime–only the certainty of being caught and punished can do that. What the country needs is a better justice system--not a new one based on the barrel of a gun.
The restoration of the death penalty blatantly violates international law.
The Philippine Government signed the Second Optional Protocol to the International Covenant on Civil and Political Rights on 20 September 2006 and ratified it on 20 November  2007  without  reservation.    The  Second  Optional  Protocol  “is  the  only
international treaty of worldwide scope to prohibit executions and to provide for total
abolition of the death penalty.4  States that ratify the Second Optional Protocol “are
required to renounce the use of the death penalty definitively.5
President-elect Duterte is bound by the Second Optional Protocol. In the words of two highly respected experts on the death penalty, Sir Roger Hood, Professor Emeritus of Criminology, University of Oxford, and William Schabas, Professor of Human Rights Law and International Criminal Law, Leiden University
The Philippines would, if it reintroduced the death penalty, be the only nation to have abolished it and reintroduced it twice, and the only nation to reintroduce it having made a commitment to abolishing it by ratifying the 2nd Optional protocol to the International Covenant on Civil and Political
Rights.    
As for the Second Optional Protocol, no State has ever attempted to denounce the Second Optional Protocol. It would be unprecedented. I think it would also be illegal. The Human Rights Committee has already made it clear that denunciation of the Covenant itself is impossible. This was well-known to the Philippines when it ratified the Second Optional Protocol. Article 6(1) of the Second Optional Protocol states, 'The provisions of the present Protocol shall apply as additional provisions to the Covenant.' Thus, when [the] Philippines ratified the Protocol, it agreed that its provisions became part of the Covenant. And it is impossible to denounce the Covenant, in whole or in part. If [the] Philippines restores the death penalty, it will be in clear breach of both the Covenant and the Protocol. This has already happened with Liberia, which restored the death penalty after ratifying the Second Optional Protocol. Liberia has had no executions since ratifying the Second Optional Protocol, however. Given that article 1(2) of the Protocol says, 'Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.', merely enacting legislation for the death penalty, even if it is not imposed, constitutes a breach of the Protocol and therefore of the Covenant.
If the Philippines reinstates capital punishment (after having ratified the Second Optional Protocol), the country would be condemned for violating international law. It would be a great stigma.
The shoot-to-kill policy disregards rights guaranteed by the Constitution.
The 1987 Constitution categorically mandates that “[n]o person shall be deprived of life,  liberty,  or  property   without  due  process  of  law.6   The  Constitution  further guarantees the right to be presumed innocent, to be heard, to counsel, to be informed of the nature and cause of the accusation against him/her, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his/her behalf. These rights are brushed aside by the shoot-to-kill policy.
The shoot-to-kill policy gives unbridled discretion to law enforcement officers to take the law into their own hands and act as judge, jury, and executioner. It contravenes Article 11(1-3) of the Revised Penal Code which authorizes police officers to use deadly force only when it is reasonably necessary. In the words of Justice Antonio Carpio of the Supreme Court—
[…] a policeman is never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be affected otherwise.7


FLAG, therefore, calls upon the President-elect to abandon his plans to restore the death penalty and impose a “shoot-to-kill” policy.

Quezon City, Philippines, 20 May 2016.

JOSE MANUEL I. DIOKNO
Chairman

1 See “Socio-economic Profile of Capital Offenders in the Philippines, a study conducted by the Free
Legal Assistance Group (FLAG) in 2004, published by the Philippine Center for Investigative Journalism
2 G.R. Nos. 147678-87, 07 July 20

3 Philippine Daily Inquirer, 17 May 2016, p. A-6.Philippine Daily Inquirer, 17 May 2016, p. A-6.
4 Article by Pierre Deset published on 27 June 2008, available at  http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html.
5 Id..

6 1987 PHIL. CONST., art. III, sec. 1.
 7   Cabanlig v. Ynares-Santiago, GR No. 148431, 28 July 2005.


FREE LEGAL ASSISTANC GROUP [FLAG]

Care of Sanidad Law Offices, 2/f East Side Building, 77 Malakas Street,


Brgy Pinyahan, Diliman, Quezon City, Tel (632-475-7159) Email flag@flag.com.ph

Sunday, May 29, 2016

Indonesia Again Prepares its Executioners

This time it may be her turn to die.

It is reported that an execution squad is ready again on Indonesia's island of death where the killing field is being  enlarged. A year ago fifteen drug traffickers were executed by firing squad in macabre killings that shocked the world. "Indonesia may proceed to the next round of executions with a list of 14 death row convicts, reportedly after Idul Fibri in early July" (ASEAN setback: Forward march on the death penalty. The Jakarta Post, May 31)
President Widodo rejects the wisdom of centuries which has concluded that capital punishment is itself a moral evil which cannot deter the evil of crime. He has not only rejected the majority viewpoint of the world, and its expression in the repeated vote of the UN General Assembly for a worldwide moratorium but rejects criticism and dissent on the strength of his own conviction.
He has unfinished business from the first round of killings, including Mary Jane Veloso, the young Filipina mother whose sentence was far from being beyond reasonable doubt of guilt. How this young woman has aged over the year of uncertainty for her life.
Meanwhile he protests the execution of Indonesian women in Saudi Arabia; is he questioning the legitimacy of Sharia law?





Monday, May 23, 2016

Koh Tao Murder Case Appeal

Interpreter, mothers of accused, Thai lawyer
Koh Tao Murder Case Legal Defense Team and Accused’s Mothers Today Submit 200 Page Death Sentence Conviction Appeal to Koh Samui Court

For further enquiries on this press release, please contact:
1. K. Nakhon Chompuchat (Head Defense Team Lawyer nakhonct@gmail.com +66(0)818 473086)
2. Mr. Andy Hall (MWRN International Affairs Advisor andyjhall1979@gmail.com +66(0)846 119209)
3. Ko Sein Htay (MWRN President kzlinn.sein@gmail.com +95(0)9799654086)

Today at 9am a team of pro-bono lawyers working under the Lawyers Council of Thailand (LCT) to defend two Myanmar migrant workers sentenced to death following conviction on 24th December 2015 for the rape and murder of a female British tourist and the murder of a British male tourist on Koh Tao Island, Thailand in September 2014 submitted a 198 page appeal against this conviction and sentencing to Koh Samui Court. The lawyers were accompanied at this submission by May Thein and Phyu Shwe Nu, mothers of the two 22 year old Rakhine accused Zaw Lin and Wai Phyo, who travelled from Rakhine State in Myanmar to Thailand on Saturday to submit the appeal and then visit their sons on death row in high security Bang Kwang Prison in Nonthaburi, where the accused have been held since January.  

The appeal was worked on and finalized over 5 months as part of ongoing efforts by the team of LCT lawyers supported by Burmese, Australian and British translators, assistants and advisors to ensure a fair trial and adequate defense for the two accused. Case witness testimony ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence. In its ruling sentencing Zaw Lin and Wai Phyo to death, the Koh Samui Court ruled last year that the prosecution had proved beyond all reasonable doubt and in using forensic evidence in accordance with international standards that Zaw Lin and Wai Phyo committed the crimes accused of. Today’s appeal disagrees with this ruling and requests Region 8 Appeals Court to reconsider and dismiss all charges against the accused. Once the Prosecution has responded to the defense appeal, Region 8 Appeal Court shall consider the case, likely within 2017, and send a judgement back to Koh Samui Court to deliver.

Hannah Witheridge (23) and David Miller (24) were murdered on 15th September 2014 on Koh Tao, a tourist island in the Gulf of Thailand. The murder investigation was widely criticised both domestically and internationally due to alleged mishandling of forensic evidence and alleged torture both of the two accused and migrant workers living on Koh Tao Island. The challenges faced to Thailand’s law enforcement and justice systems in this case also cast a serious shadow over the safety of tourism in Thailand.

On 2nd October 2014, Zaw Lin and Wai Phyo (Win Zaw Htun), 22 year old migrant workers from Rakhine state in Myanmar, were arrested for immigration offences. Additional charges were then laid against them during questioning for rape, murder and theft related to the killings of Hannah Witheridge and David Miller. The two accused signed confessions during interrogation and also publicly and during questioning re-enacted the crimes.

On 14th October 2014, at a first advance witness hearing in the case, both accused then retracted their confessions to LCT lawyers. Later on defense lawyers received information that the two accused alleged beatings and torture were used during their detention, prior to sending on for questioning by investigation officials, to elicit their confessions made involuntarily. The Migrant Worker Rights Network (MWRN) and rights groups called on the LCT to provide trained lawyers for the accused to ensure they could adequately defend themselves against all the charges so as to ensure a fair trial and also importantly to guard against a potential miscarriage of justice in such a highly publicised and tragic case.

A two month delay in prosecuting the accused resulted from extensive media and diplomatic attention towards the case in addition to calls for justice by the accused, their families and the wider public. This resulted in further questioning of the accused that confirmed that both maintained their complete innocence and insisted their confessions came about involuntary as a result of torture. Multiple criminal charges were then filed against Zaw Lin and Wai Phyo on 4th December 2014 by the Koh Samui prosecutor at Koh Samui Court. The judges heeded calls for adequate time to prepare a thorough defense for the accused and, after a number of preliminary evidence exchange hearings, the trial eventually commenced on 8th July 2015. Case witness testimony ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence.

On 24th December 2015, Koh Samui Court, in a judgement already widely disseminated (unofficially translated by MWRN and available online at https://assets.documentcloud.org/documents/2706254/FINAL-KOH-TAO-JUDGEMENT-English.pdf), fully supported and accepted the arguments put forward by the prosecution and ruled to convict Zaw Lin and Wai Phyo of murder and rape whilst sentencing them both to death. Relying primarily on DNA and forensics evidence collected, analysed and reported by the Royal Thai Police, the Court ruled that the prosecution had proven its case against the two accused beyond all reasonable doubt and in accordance with international forensic standards. The court ruled the defendant’s arguments were unsupported.

The 198 page appeal submitted today to Koh Samui Court outlines in detail key planks of the defense team’s arguments, presented during testimony of its 13 witnesses in court, so as to outline to what extent the defense witnesses should be seen as credible and the ruling of Koh Samui Court overruled by Region 8 Appeals Court. The appeal also considers testimony of prosecution witnesses so as to allow the court to compare the reliability of this witness testimony alongside that of the defense witnesses.

Almost half of the appeal contests the key issues surrounding reliability of DNA evidence accepted by Koh Samui Court as proving beyond all reasonable doubt a certain match between the two accused and the crimes/crime scene ‘in accordance with international standards.’ The defense insists this evidence, including that allegedly taken from cigarette butts, sperm and saliva is wholly unreliable, inadmissible and should not have been considered by the Court in its ruling as it was not collected, tested, analysed or reported in accordance with internationally accepted forensic standards such as ISO 17025 and ILAC G19. The DNA evidence relied on contained many visible errors and raised suspicions of contamination, as accepted by the Court itself despite its ruling. A number of forensic tests not presented in Court except in the form of verbal hearsay evidence included cigarette butts. These tests were however relied on in the Court’s judgement to support the investigation reliability and a certain match between the accused and the deceased female’s body. The appeal insists all of this evidence should not have been considered as satisfying beyond reasonable doubt that the accused violently raped and murdered the female deceased or murdered the male deceased.

In addition, the appeal argues that Koh Samui Court erred in dismissing the defense team’s arguments that:
1.      The case questioning and charging of the accused prior to prosecution was unlawful. The accused questioning after arrest and the process of notifying them of the charges against them were incorrect. The accused were questioned as ‘witnesses’ but it turned out as a confession that stated they confessed to murder and rape. The accused were questioned without lawyers or trusted persons present. The accused were not read their rights as criminal suspects or explained the nature of offences they were charged with. Neither were the accused provided adequate translation and legal representation as required by law and as was reasonable in the circumstances. The accused’s DNA samples were taken from them involuntarily and are hence inadmissible as evidence in court.
2.      The accused’s original confessions cited by the prosecution in court came about involuntarily from torture or abuse, supported at trial by independent medical evidence, which made them fear for their lives and safety in the context of a case investigation when migrants reported systematic abuse on Koh Tao. These written confessions, even if they had been signed, should not have been considered by the Court. Other documents also written for the accused and which they involuntarily signed not even understanding what they were signing likewise should not have been considered by the court also. The videoed or staged re-enactments undertaken by the accused and submitted to the Court were likewise involuntary, staged under threat of violence and should not have been considered or should be inadmissible as evidence in court. 
3.      There was no link between the alleged murder weapon (a hoe) and the accused. DNA samples from the hoe didn’t match the accused DNA profiles but instead matched the DNA profiles of other individuals and hence could not support a murder conviction.
4.      Other surrounding or circumstantial evidence in this case apparently showing the guilt of the accused was unreliable and should have been inadmissible and not considered by the Court. All of this evidence was not collected, tested, analysed or reported in accordance with internationally accepted standards. This includes all evidence relied on by the Court as linking the accused to the alleged crimes such as theft of the male deceased’s mobile phone and sunglasses as well as a ‘running man’ caught on CCTV.
5.      The prosecution case was marked by an absence of significant evidence needed to prove the guilt of the accused for crimes they were charged with and supports the contention that the case against the accused could not be proved beyond reasonable doubt. This absent evidence included photographs of the crime scene, autopsy and DNA analysis processes, chain of custody documents for forensic evidence, certain forensic evidence documents as well as all detailed DNA analysis laboratory case notes. In addition, the clothes and the body surface of the female deceased expected to contain significant traces of DNA of the perpetrators were either not tested at all or tested but not included in the prosecution file or case evidence list. CCTV footage provided by the prosecution seemed to be incomplete and no fingerprint or footprint evidence was presented as part of the prosecution case.

The conclusion stated in the appeal is the opinion of the two accused calling for the Region 8 Appeals Court to issue a judgement dismissing all the charges against them.