We received with joy last week’s news that the Office of the Ombudsman finally filed murder charges against 10 Navy officers in connection with the killing of Navy Ensign Phillip Pestaño in 1995.
In January 11, 2012, the new Ombudsman (former Supreme Court justice) Conchita Carpio-Morales filed “murder charges against 10 officials and officers of the Philippine Navy in connection with the death of [Phillip] Pestaño. Morales [reversed] the earlier dismissal of [her predecessor] saying there is sufficient evidence to file charges against Captain Ricardo Ordoñez, Cdr. Reynaldo Lopez, HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.”[1]
In honor of Phillip Pestaño’s courage and his parents’ determination, we revisit the findings by the UN Human Rights Committee (UNHRC) in 2010 upon a complaint filed in April 24, 2007 by Phillip’s parents, Spouses Felipe and Evelyn Pestaño, against the Philippine government, in relation to their Phillip’s alleged murder on September 27, 1995. The complaint filed by Spouses Pestaño was for “violation by the Philippines of their son’s rights under article 6[2], article 2, paragraph 3[3], article 9, paragraph 1[4], and article 17, paragraph 1[5] of the International Covenant on Civil and Political Rights [ICCPR].”
The facts as presented by Spouses Pestaño before the UNHRC[6]
Phillip Pestaño was an Officer of the Philippine Navy serving as cargo officer of the ship “BRP Bacolod City” during its Mindanao voyage in September 1995. On or about 25 September 1995, the ship’s Commander permitted the loading of more than 14,000 board feet of logs onto the BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the loading of such unauthorized cargoes.
On 26 September 1995, the Phillip’s parents received an anonymous phone call, warning them that their son’s life was in danger. On the same day, they collected their son from the Navy Station at Sangley Point, Cavite City, about 100 kilometers from Manila, and took him to their house in Loyola Heights, Quezon City. That night, Phillip disclosed to his father that the BRP Bacolod City ship was “dirty”, and that the illegal cargo included 20 sacks of shabu (formed from Methamphetamine), worth approximately 1 billion pesos in the black market. The father tried to dissuade his son from pursuing the case, as he was concerned that any action taken by his son may jeopardize his own business, as the Philippine Navy’s biggest ship repair contractor. But Phillip was determined to take the matter forward.
On 27 September 1995, at about 4:00 am, Phillip left the family home and proceeded to board the BRP Bacolod City. At about 11:00 am on the same day, his parents received a call from the Philippine Navy, asking them to proceed to the Navy Headquarters in Manila, because their son Phillip “had an accident”.
When his parents reached the Navy Headquarters, they were prevented from entering their son’s suite, where he lay dead. Instead, they were immediately asked to sign an authorization for an autopsy to be conducted on their son’s body, to which they consented after having viewed their son’s body. The Navy thereafter exhibited an alleged suicide weapon and an alleged suicide note, in support of their position that Phillip had committed suicide.
Significantly, on 30 September 1995, Phillip was buried in the National Cemetery for military personnel and given full military honours, despite a Navy policy stating that suicide victims should not benefit from such treatment.
After conducting their own investigations, the Criminal Investigation Division of the Philippine National Police and the National Bureau of Investigation of the Department of Justice corroborated the Navy’s position, concluding that Phillip had committed suicide.
Also notable is the fact that in the course of the same month, after conducting its own inquiry, and despite the official Navy and police conclusions, Phillip’s insurance company paid the full amount of his coverage to his beneficiaries for his death. Apparently, the insurance company believed Phillip did not commit suicide.
In October 1995, the radio operator of the BRP Bacolod City during its Mindanao voyage, and close friend of Phillip, drowned in high seas under highly suspicious circumstances during an alleged mission where all his companions survived. The victim’s body was never found.
In November 1995, another member of the Navy, who was perceived as Phillip’s ally, and who was also aboard the BRP Bacolod City in September 1995, mysteriously disappeared after being ordered to report to the Navy Headquarters in Manila. This person is still missing and is believed to be dead.
On 15 November 1995, two Senators filed a Senate Resolution, directing the appropriate Senate Committees to conduct an inquiry into the circumstances surrounding Phillip’s death.
In December 1995, the State party’s Navy Flag Officer in Command, a Vice-Admiral, invited Phillip’s parents to dinner, and requested that they refrain from pursuing their son’s case against the Navy. Two weeks later, the Navy Flag Officer in Command sought to see Spouses Pestaño again, and presented Mr. Pestaño with his company’s contract with the Navy, worth a hundred-million pesos, together with an affidavit of waiver and desistance to pursue his suit against the Navy. The spouses decided that they would not abandon their son’s claim. One week after this information was relayed to the Navy Flag Officer in Command, the four Navy ships being repaired by Mr. Pestaño’s company all mysteriously sank, and his company’s offices in the Navy Station in Sangley Point were ransacked and looted.
It is also reported that Mr. Pestaño’s nephew, the company’s property custodian, was shot dead during the same period.
On 2 January 1996, Spouses Pestaño received a leaked copy of an intelligence report of the Armed Forces, which stated that the BRP Bacolod City carried 1 billion pesos worth of shabu in 20 sacks of rice during its September 1995 trip. The report also indicated that this shipment had been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon discovering the illegal cargo, Phillip had confronted his superior, and was killed afterwards, to prevent him from revealing the criminal activities taking place on board the ship. This confidential report also identified the chief security officer of the Navy Flag Officer in Command as the most likely perpetrator of the crime.
In January 1996, another member of the Philippine Navy mysteriously died in a military hospital, after a strange and quick deterioration of his condition. This person was suspected of involvement in the “shabu operation” in the BRP Bacolod City, as well as in the death of Phillip, and had engaged in discreet talks with Spouses Pestaño before their’s son’s death. He was believed to be ready to reveal important information before he died. The death of this member of the Navy brings to four the number of persons killed in connection with the September 1995 voyage of the BRP Bacolod City. The four killings remain uninvestigated, and unaccounted for.
Spouses Pestaño filed complaints against the Commanding Officer and certain crew members of the BRP Bacolod City: (1) in September 1995 with the Philippine Navy; (2) in September 1995 with the Philippine National Police and the National Bureau of Investigation of the Department of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in January 1998 with the Philippine Senate (Committees on Justice-Human Rights and Defense-National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was taken on the case by the new Ombudsman, Merceditas Gutierrez, since she took office in December 2005.
After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found merit in the spouses’ petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight senior and junior officers and enlisted personnel to submit counter-affidavits as respondents, within ten days. However, only one week after reopening the spouses’ case, the Ombudsman stepped down, and was replaced. Since then, the case was left uninvestigated in the Office of the Ombudsman for military affairs.
On 25 January 1998, after eight Committee hearings, a visual inspection of Phillip’s stateroom in the ship, and relying, inter alia, on expert evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestaño case, which contained the following findings: (i) Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place in the vessel different from the one where his body was found; (iii) after his death, his body was moved and laid on the bed where it was found; (iv) he must have been shot on board the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it appear that Phillip killed himself inside his stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have accomplished it by himself. The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the circumstances surrounding Phillip’s murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the deliberate attempt to portray a suicide.
On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without prejudice, concluding in its evaluation report that “the conduct of further investigation in order to find out the identity of the perpetrator and his accomplices, if any, will only be a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time”.
UNHRC’s consideration of the merits of the case
Let us tell you now how the UNHRC passed upon the merits of the case.
Violation of Article 6 of the ICCPR
As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated – referring to the ICCPR as the Covenant - that it:
“recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee also refers to its jurisprudence, according to which both a criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore arise as a result of a State party’s failure to take appropriate measures to punish, investigate or redress such a violation.”
“7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October 1995 that the victim had committed suicide, it now appears undisputed that the death of [Phillip Pestaño] was a violent one, resulting from a homicide. The [Philippine Authorities’] submissions of 18 January and 8 May 2008, contending that [Spouses Pestaño]’s case was “an ordinary criminal case”, at least concede this fact…”
The UNHRC took note of the following:[7]
- conclusions of the substantial Senate report of 25 January 1998, which established that the victim was shot on board the BRP Bacolod City on 27 September 1995, that there had been a deliberate attempt to make it appear that [he] killed himself, and which recommended that an independent investigation be conducted.
- that an administrative and criminal action filed by [Spouses Pestaño] is currently pending against members of the [Philippine]’s Navy, i.e. of an organ of the [state].
- [Spouses Pestaño]’s assertions that two other members of the [Philippine] Navy who were close to the victim, as well as another Navy Ensign who allegedly participated in the illicit boarding of drugs on the BRP Bacolod City, and who had engaged in communications with [Spouses Pestaño] about their son’s death, all died or disappeared in mysterious circumstances between October 1995 and January 1996.
- [Spouses Pestaño]’s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to lose their business with the Navy should they persist in their complaint. As they pursued their action, [Spouses Pestaño] reportedly lost their business, and their nephew, the company’s property custodian, was killed.
- In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these facts, the Committee gives due weight to the [Spouses Pestaño]’s contentions, which raise a strong presumption of direct participation of the [Philippine Government] in the violation of their son’s right to life.
The UNHRC then considered the following:[8]
- that the killing of [Spouses Pestaño]’s son on board a ship of the [Philippine] Navy warranted a speedy, independent investigation on the possible involvement of the Navy in the crime. … To simply state that there was no direct participation of the State party in the violation of the victim’s right to life falls short of fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of the victim, [Spouses Pestaño] are still ignorant of the circumstances surrounding their son’s death, and the [Philippine] authorities have yet to initiate an independent investigation. In its submission of 8 May 2008, the [Philippine Authorities] referred to an Order of 10 August 2007 of the Office of the Ombudsman, which deemed it necessary to conduct further proceedings … in the case. The Committee is not aware, however, of any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses Pestaño] in October 2005. Since that date, no suspect was prosecuted, or tried, let alone convicted, and [Spouses Pestaño] were not compensated for the tragic loss of their son.
- that the death of [Phillip Pestaño] is directly attributable to the [Philippine Authorities]. When a person dies in circumstances that might involve a violation of the right to life, the State party is bound to conduct an investigation and ensure that there is no impunity. The [Philippine Authorities] must accordingly be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3, to properly investigate the death of [Phillip Pestaño], prosecute the perpetrators, and ensure redress.
Violation of Article 2, paragraph 3(a) of the ICCPR
The UNHRC states that “[U]nder article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide [Spouses Pestaño] with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the circumstances of their son’s death, prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an obligation to prevent similar violations in the future.”[9]
In ending, the UNHRC relayed its wish “to receive from the [Philippines], within 180 days, information about the measures taken to give effect to the Committee's Views.”[10]
We are unaware if the UNHRC’s wish was granted.
Violation of Article 9, paragraph 1 of the ICCPR
In claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that “[Spouses Pestaño] claim that they received an anonymous call, informing them that their son’s life was in danger, the day before he was found dead. However, there is no evidence that [Spouses Pestaño] reported these threats against their son to [Philippine] authorities, and if so, that the [Philippine Authorities] failed to take appropriate action for this protection. Nor is there any conclusive evidence that the [Philippine Authorities were] involved in threatening [Phillip Pestaño]. In the absence of any further arguments put forward by [Spouses Pestaño] on this issue, the Committee [considered] that these claims are not sufficiently substantiated for the purposes of admissibility and [therefore] inadmissible ...”[11]
Violation of Article 17, paragraph 1 of the ICCPR
The UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the Covenant since [Spouses Pestaño] claim that “the [Philippine Authorities’] attempt to make it appear that [Phillip Pestaño] committed suicide, is to be construed as an unlawful attack against his honour. [The Committee considered] that this claim [was not] sufficiently substantiated for the purposes of admissibility, and is inadmissible …”[12]
It is ironic and deeply sad that an international body had to deliberate upon the merits of what is clearly a local criminal affair. Justice delayed is justice denied they say. Nevertheless, the filing of the cases, while long overdue, is still a welcome development. We can only hope that the Philippine Government now stops its stonewalling, cleans its ranks, and help in any one’s sincere pursuit of justice. A much cleaner government would have prevented the early and unjustified death of Phillip Pestaño. A more just government would now support Felipe and Evelyn Pestaño any way they can and prevent the grief of families like theirs in the future.
[1] Pagulong, C. J. (2012, January 13). Timeline: Pestaño murder case . Retrieved from http://www.philstar.com/Article.aspx?articleId=767353&publicationSubCategoryId=63
[2] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 14 January 2012] -
Article 6
- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 2
- Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 9
- Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Article 17
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
[6] Pestaño v. The Philippines, CCPR/C/98/D/1619/2007, UN Human Rights Committee (HRC), 11 May 2010, available at: http://www.unhcr.org/refworld/docid/4c19e3692.html [accessed 14 January 2012]
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
