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Primer on draft Con-Com Charter: Part Eighteen

Con-Com 2018 Member

Q: Can the Commission on Human Rights investigate insurgents, rebels or terrorists who visit cruelty and injury on others?

A: Yes, the Commission is not limited to the investigation of violations by agents of state such as law-enforcers and men or women in uniform.  It may act on complaints against non-state actors.  And therefore, atrocities committed by rebels, insurgents, and terrorists may be the subject of the CHR’s investigations.

Q: Does the CHR now have prosecutorial powers?

A: No, it does not.  What it can do is recommend the prosecution of offenders to the proper authority.  There is nothing textually that forbids it from bringing to the attention of international human rights bodies violations of human rights by agencies or instrumentalities of the Philippines itself, and this would not constitute disloyalty to the Republic since this is precisely its constitutionally ordained task.

Q: How has the definition of “human rights” in the Draft differed from the established definition?

A: It used to be held that human rights violations were violations of rights perpetrated by agents of the state.  This time, a human rights violation is “any violation of the rights guaranteed by the Constitution and by international human rights covenants and treaties to which the Philippines is a party, perpetrated by the State or non-state actors”.  Unless clearly qualified, however, something like the violation of intellectual property rights would fall under this rather capacious definition.  However, it should be understood that the acceptation of human rights should be limited to what domestic law and international law have considered human rights.  Torture, for example, is a human rights violation, and this time the CHR has cognizance over it whether committed by the police or by a mob of gangsters.

Q: It has always complained that the CHR is toothless?  Is it so even under the draft?

A: It still has no prosecutorial powers, but it certainly is not toothless.  One of its powers is to “provide preventive measures and legal assistance to all victims whose human rights have been violated or who may need protection”.  Preventive measures can be many and different, and the fact that the Draft does not specify what preventive measures these might give the CHR a rather broad latitude in this respect.  Combine this with its “power to cite in contempt” and what you have is certainly a biting agency.

Q: What has changed in respect to the Ombudsman?

A: Unlike its Scandinavian progenitor, the Philippine Ombudsman will be a commission, under the Draft, consisting of a Chief Ombudsman, an Associate Ombudsman and Deputies.  It is also clear that the Special Prosecutor, though a distinct officer, is “under the control and supervision of the Federal Ombudsman Commission”.  Also while the Supreme Court held in the case of Honasan v. Panel of Investigating Prosecutors (2004) that the Department of Justice could investigate charges against public officers and that the Ombudsman’s jurisdiction was not exclusive, under the Draft, in graft and corruption cases, only the Ombudsman can prosecute.  Obviously, the Department of Justice may still conduct preliminary investigation.  The most important change, though, is that for the Ombudsman to reach a decision, the Commission—not just the Ombudsman, or a Deputy—must, by a majority vote, resolve the case within 120 days of its filing.

Q: The Ombudsman, in the past, has quite frequently inflicted the punishment of dismissal from the service with the accessory penalties of disqualification from public service, cancellation of all eligibility and forfeiture of all benefits.  It has done so on the basis of “substantial evidence”.  But for such severe consequences to follow upon a finding of substantial evidence does not seem to be fair.  Was anything done about this?

A: There is now a proviso that when the penalty is removal from the service or higher, the evidence required shall be clear and convincing—which is a degree higher than what is required in civil cases— preponderance of evidence—but lower than that required for conviction in criminal cases — proof beyond reasonable doubt.  It is the degree of proof usually required to overcome presumptions of law.

Q: Does any court have the competence to stop an investigation being conducted by the Ombudsman?

A: Yes, the Draft gives the Federal Administrative Court the power to issue injunctive relief against an investigation but only when “there is prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Federal Ombudsman Commission.”

Q: In Fabian v. Desierto (1998) the Supreme Court ruled that the Court of Appeals had jurisdiction over petitions for certiorari from judgments of the Ombudsman in disciplinary cases.  Has this jurisprudence been maintained by the Draft?

A: No, the Federal Administrative Court is precisely proposed for this purpose and it will be this court to which appeals and petitions for review shall be addressed.

Topics: Commission on Human Rights , prosecutorial powers , Federal Administrative Court , Court of Appeals
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