The Melo report: prospects and limitations
RENATO M. REYES, JR.
BAYAN Secretary General
Delivered in a forum at the QC Sports Club
March 14, 2007

Introduction

On February 22, after insistent demand from the European Union, the United Nations special rapporteur, the Catholic Church, the public and the media, the Arroyo government finally and grudgingly disclosed the controversial “initial” report of the Melo Commission. The release of the report came after UN special rapporteur on extrajudicial killings Philip Alston delivered a scathing criticism of the Philippine military and national government over the continuing killings of activists.

The highlight of the Melo report was its implication of the military in the killings, particularly M/Gen. Jovito Palparan. However, the report cleared the president and her administration of any liability. It would appear that the Commission endeavored to come up with a “win-win” report that assuaged both local and international outrage over the killings, while shielding the President from accountability.

The report however, still managed to draw the ire of the Chief of Staff of the Armed Forces of the Philippines Gen. Hermogenes Esperon who to this day, to use Philip Alston’s words, is in still a in a state of almost total denial about the military’s role in the killings.

The findings of the Melo Commission are the ff: 1) the military, not the NPA, in involved in the killings of activists, 2) there is some circumstantial evidence to hold Palparan and some of his superiors responsible for the killings based on the principle of command responsibility, 3) there is no state policy that sanctions the killings of activists.

For some, the conclusions drawn by Melo may appear good enough, especially in a time when government accountability is so hard to come by. The findings of the Commission may have even exceeded the expectations of some quarters.

But for those who are in the line of fire of the bonnet-clad, motorcycle-ridding death squads, the report still has a long way to go in terms of pinpointing the root causes of the extrajudicial killings.

At the end of the day we ask: are the conclusions and recommendations enough to put a stop to the killings?

Shaky start

The Melo Commission was created by Arroyo on August 21, 2006 and was tasked to investigate the root causes of the extrajudicial killings of activists and journalists in the Philippines. The Arroyo government said that the creation of the commission was an earnest response to the widespread killings.

From the beginning, the formation of Melo Commission drew mixed reactions. Opposition figures like Sen. Aquilino Pimentel and Sen. Jamby Madrigal were not convinced the Commission would do its job. Amnesty International issued a memorandum addressed to the Arroyo government with proposals on how the Commission can meet international standards for investigative bodies. More importantly, human rights advocates and the families of victims of extrajudicial killings were wary of cooperating with the commission.

Bayan has already stated in a previous paper the reasons why activist groups did not participate in the hearings of the Commission. These reasons were grounded on an analysis of the current state policy of repression and in relation to recommendations of AI regarding the formation of an independent commission – standards that the Melo Commission failed to live up to.

The non-participation of victims and activist groups has been made an issue by the Arroyo government as the reason why the Melo report was incomplete, hence not fit for public release. In fact, the administration even insinuated that the victims, from the very start, did not want the Melo Commission to succeed in its mandate, as if their non-participation was some kind of premeditated plan to sabotage the Commission. The Arroyo administration now wants to make the victims the scapegoat for whatever shortcomings the Melo Commission had.

In sum, the reasons for the non-participation of activists formations are: 1) the commission was not independent, 2) there was a valid concern that the Commission was created to clear Mrs. Arroyo of any liability, 3) the commission did not take a victim-centered approach, 4) the commission did not have the means to protect witnesses who would come forward to testify in public hearings, 5) the commission lacked powers and means to conduct a thorough-going investigation on the root causes of the extrajudicial killings. The central issues here are the commission’s independence, mandate and powers.

It all boiled down to a question of trust. In sharp contrast to their non-participation in the Melo probe, the human rights groups fully cooperated with the Alston mission. The UNSR obviously gained the trust of the victims and the organizations.

Melo tags the military

The Melo report, despite all its shortcomings, was at least clear on one thing: the military was involved in the killings of activists. The report convincingly demolished the usual police and military line which pointed to an alleged “internal purge” by the New People’s Army as the reason for the activist deaths. The Melo report, however, blamed only a “small group” within the military as responsible for the killings, singling out M/Gen. Jovito Palparan as one of one of those principally responsible.

In the words of the Commission, “there is some circumstantial evidence to support the proposition that some elements within the military or connected to the military are responsible for the killings.”

Regarding Palparan’s involvement, the report says that “(he) and perhaps some of his superior officers may be held responsible for failing to prevent, punish or condemn the killings under the principle of command responsibility.”

However the commission also said that whatever “circumstantial evidence presented before the Commission and the inferences it draws therefrom are probably grossly inadequate to support a criminal conviction.”

According to the report, the military, or at least a small group within, is responsible for the killings. The report cited motive, capability and opportunity as the three basis for blaming the military for the killings.

The report says that in a great majority of cases, “the only explanation for the victims’ death is the fact that they were allegedly rebels or connected with the CPP-NPA.” The Commission considered the testimony of Esperon and Palparan who both considered legal Leftist groups as “enemies of the state” that should be “neutralized”.

Indeed from our actual experience, there is a direct relationship between communist-labeling and the murder of activists. It is a common occurrence that victims are first subjected to a vilification campaign, being tagged as communist sympathizers or leaders, before being assassinated.

Despite the testimony of Esperon that the “neutralization” of the “enemies of the state” involves a “holistic approach”, the Commission did not discount the fact that there may be some elements who would take a “direct approach” to neutralizing their enemies.

The assertion that the military is involved in the killings runs counter to the view that the NPA is responsible for the killings.

The Commission in fact totally discredited the “NPA purge” theory that the police and military have been peddling for some time now. The Melo report said that the PNP findings that the victims were killed by the NPA for alleged financial opportunism did not hold water since only two victims were alleged finance officers of the NPA according to the PNP’s own investigation.

Moreover, the report said that if there was really an ongoing purge, it would have been advantageous for the military to bring to their side the possible victims of the purge, instead of labeling them as “enemies”.

Ironically, what clinched the Commission to junk the “NPA purge” theory was no less than Palparan himself. In his usual display of arrogance, Palparan said he did not believe in the “NPA purge” theory and was skeptical of the reports. (Perhaps he wanted to take credit, even indirectly, for the murders of legal activists.)

As for the criteria of opportunity and capability, there was no doubt that the military possessed both. Of course Gen. Esperon argued in his letter to Melo that the NPA also had the military capability to conduct these assassinations. However this assertion can only be dismissed for lack of any plausible motive. In the words of the Commission, “with the CPP-NPA out of the question, only a group with certain military capabilities can succeed in carrying out an orchestrated plan of eliminating its admitted enemies.”

The Commission also pinned Palparan for various statements he made to the media wherein he himself established the motives for the extrajudicial killings. Extensive quotes from print and broadcast interviews showed Palparan’s approval of the political killings. The notorious general did not categorically deny that his men may have been involved in the killings, even boldly declaring that he may have inspired the killers. The Commission does not limit its findings to Palparan but also “some of his superior officers” though none were named.

The Commission has invoked the principle of command responsibility in blaming Palparan and “some of his superior officers” for the killings. Under this principle, the superior officer is responsible for the crimes committed by his subordinates for failing to prevent or punish them.

Palparan for his part knew that the killings were being done under his watch but did nothing to stop and investigate these crimes.

No other superior officer was mentioned as being responsible for the killings like Palparan. In the course of the report however, the Commission did cite that Gen. Esperon merely called Palparan three times on the cellphone when confronted with allegations of extrajudicial killings. The report also said that the AFP leadership did not take any steps to investigate Palparan, saying that no complaint was filed that the AFP could act on. This is however is not true since the AFP top brass merely had to refer to existing cases vs Palparan filed before the Department of Justice, the Commission on Human Rights and the Commission on Appointments.

For some, the findings of the Commission may be enough. Such a public indictment of high ranking military officials, even if based on circumstantial evidence, is very rare under this administration and is certainly most welcome. But as we said earlier, blaming one or two generals won’t stop the trend of violence against legal activists.

Where the Melo report came up short

What is frustrating for activists and victims is that the Melo Commission wittingly insulated the Arroyo presidency from any responsibility in the killings.

The Commission made a sweeping remark when it said that there is no policy from military and civilian superiors (underscoring ours) that sanctions extrajudicial killings of activists. This claim has no factual basis in the report. The Commission did not need the testimony of witnesses and victims to prove whether there is indeed a policy or not. The Commission merely had to take into account everything that has been said by the commander-in-chief, her cabinet, her security advisers and the top brass of the police and military as well as everything that the government didn’t do to address the problem.

The communist-labeling of legal organizations is by itself a policy declaration commonly heard from cabinet officials as well military and police officials. As one lawyer observed, the military hierarchy has conditioned the minds of its intelligence officers and enlisted men to think of the political left as “enemies of the state”. These soldiers tend to act adversely against a perceived enemy by “neutralizing” or “liquidating” him/her.

The Commission appeared not to have undertaken any investigation (as far as we can read in the report) of any “civilian superior” of the military, including cabinet officials such as Norberto Gonzales, Raul Gonzalez, Eduardo Ermita, former defense secretary Avelino Cruz and newly appointed defense secretary Hermogenes Ebdane. Having not investigated any of the policy makers, it is quite dishonest for the Commission to conclude that no policy exists. One does not prove the non-existence of something by simply ignoring the relevant facts

Most telling of all was the Commission’s seeming ignorance of the State of the Nation Address of Mrs. Arroyo where she gave immense praise to Palparan for his achievements in the counter-insurgency campaign. At that time, it was a well known fact that Palparan’s “achievements” wherever he went was the body count of activists piling up. Can this not be reasonably construed as tolerance and encouragement by the commander-in-chief?

The Commission also took at face value everything that Gen. Esperon said regarding the all-out war policy being a “holistic approach”. The report did not strive to establish a direct relationship between this “all-out war policy” (the counter-insurgency campaign as a national policy) and the rise of political killings.

For example, the report did not take into account the existence of Oplan Bantay Laya nor was there any reference in the report of this already publicly acknowledged counter-insurgency plan of the government. Neither was there a sufficient discussion of the publicly known AFP propaganda material “Knowing the Enemy”.

What made us conclude that the report is intended to clear the administration from the beginning were the gratuitous comments of the Commission that “the president, as usual (was) on top of the situation”. Or that the “formation of the Commission shows the seriousness of the President in dealing with the issue.” These statements betray the bias and limitations of the Commission. It obviously won’t investigate its own “creator”.

For all its talk about “command responsibility” and how this applies to senior military officials, the report doesn’t seem to believe the same principle applies to the commander-in-chief. President Arroyo in theory may be held accountable, but this is only implicitly stated. In fact, the report goes to great lengths to show that Arroyo cannot be held accountable under the principle of command responsibility because she allegedly undertook steps to stop the killings.

The “small group within the military theory” loses credibility when one examines the nationwide scope and frequency of the killings. When one maps out the regions where the killings take place, and when one factors in the frequency of the killings, the “small group theory” stretches the imagination. Unless the small group being pertained to by the Commission holds top positions in the AFP leadership, we cannot subscribe to this theory.

Impact of the findings

The Palace hope was that with the report, Arroyo would be able to show the international community that she’s doing something to address the killings. However, the report also exposed the Arroyo administration and the entire military institution to severe criticism here and abroad. This would explain why, despite its weaknesses, Malacañang at first did not want to make public the report.

Politically, the Arroyo administration is in a losing situation because whatever pronouncements and promises she makes, the fact remains that the government has not been able to stop the killings. Even the UN rapporteur was not fully satisfied with the findings of the Melo Commission and was amazed that the President would extend the term of a commission the victims did not trust.

The positive impact of the report is that it raised the involvement of the military in the killings and discredited the “NPA purge” theory of the police and military. The negative aspect of the report is that it, without any ground and against all evidence, let Arroyo off the hook, as well as the entire military institution, limiting the blame to a few bad eggs in the AFP.

While publicly indicting military officials like Palparan, the same report said that there was not enough evidence for criminal proceedings. And while laying the blame on some rogue soldiers, the report went on to clear Arroyo of any culpability and accountability.

Also among the recommendations of the Melo report is the formation of special courts to try cases of activist killings, and the strengthening of the Commission on Human Rights.

Will the Melo report provide long-term solutions and strike at the root causes of the killings? No.

Recent events would show that the killings continue. Already two activists have been murdered after the release of the Melo report. Both were killed in Mindanao.

So long as the Melo Commission refuses to go deeper into policy issues, there can be no long term solutions. Investigations into policy pronouncements, programs and other issuances may not necessarily need the full cooperation of victims. It would need the cooperation of the cabinet officials who will be investigated.

While the Melo Commission demands political will on the part of government to stop the killings, it remains to be seen if the Commission has the political will to investigate the policy makers including the President as commander-in-chief. From the looks of it, the Arroyo cabinet will remain a bunch of untouchables as far as the Melo probe is concerned. This raises serious doubts on the independence and mandate of the Commission.

Bayan for its part reiterates some concrete steps that the government can take in order to stop the trend of extrajudicial killings of activists. Some of these recommendations are supported even by the limited findings of the Melo report. The recommendations include:

1. Stop the communist-labeling of legal activist groups accused of being “front organizations.” The communist tag on legal activists is by itself a policy pronouncement of the government and clearly preludes violent attacks on said groups.
2. Arroyo should issue a direct and categorical order to the AFP to stop all military operations directed against legal activist organizations.
3. De-militarize areas where there is a high incidence of extrajudicial killings.
4. Relieve military officials in areas where there is a high concentration of extrajudicial killings to pave the way for impartial investigations which can be conducted by but not limited to the Commission on Human Rights.
5. The filing of the appropriate cases versus the military officials implicated by the Melo report in the cases of extrajudicial killings. These can be brought to the special courts assigned by the Supreme Court. In relation to this, police officials who have covered-up cases or bungled investigations should be relieved of their command.

The ball is now with the Arroyo government. Either it decisively stops the killings or face mounting local and international pressure that could lead to its thrashing in the upcoming mid-term polls and further isolation from the people. ###