Opinion; Subjects: PHILIPPINES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.22-09190(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-third session, 30 March–8 April 2022
Opinion No. 14/2022 concerning Teresita Naul (Philippines)
1.
The Working Group on Arbitrary Detention was established by resolution 1991/42 of
the Commission on Human Rights of the United Nations. In its resolution 1997/50, the
Commission extended and clarified the mandate of the Working Group. Pursuant to General
Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed
the mandate of the Commission. The Council most recently extended the mandate of the
Working Group for a three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 11 August 2021 the Working Group
transmitted to the Government of the Philippines a communication concerning Teresita Naul.
The Government replied to the communication on 6 September 2021. The State is party to
the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/14
General Assembly
Distr.: General
14 June 2022
Original: English
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2
Submissions
Communication from the source
4.
Teresita Naul is a national of the Philippines and was born on 16 August 1957. She
usually resides in the Municipality of Opol, Province of Misamis Oriental, the Philippines.
5.
The source reports that Ms. Naul is a member of the Secretariat of the Union of
Peoples’ Lawyers in Mindanao, Cagayan de Oro Chapter, and a member of the national
council of Karapatan. Her work largely involves providing aid to alleged political prisoners
and victims of human rights violations. After graduating from college, she moved to Cagayan
de Oro and worked for Task Force Detainees of the Philippines, a non-governmental
organization, where she organized calls for the release of alleged political detainees and of
persecuted members of marginalized sectors.
6.
According to the source, Ms. Naul was arrested on 15 March 2020, in the Province of
Lanao del Sur, on the southern island of Mindanao. She had reportedly left a family member’s
house in Barangay San Manuel, Lala, Lanao del Norte, while a warrant of arrest was being
served. Ms. Naul was then arrested in a nearby rice field by officials of the Fourth Infantry
Division and the Second Mechanized Infantry Brigade, Mechanized Infantry Division of the
Philippine Army, of the Criminal Investigation and Detection Group of the Philippine
National Police and of Police Regional Office 10. The officials shoed a warrant issued by
Regional Trial Court, Branch 7, in Bayugan City, Agusan del Sur.
7.
According to the information received, Ms. Naul was arrested on charges of
“destructive arson” (article No. 320 of the Revised Penal Code of the Philippines (criminal
case No. 6524)), “kidnapping and serious illegal detention” (article No. 267 of the Code
(criminal cases No. 6525 and No. 6527)) and “robbery with violence against or intimidation
of persons” (article No. 195 of the Code (criminal case No. 6526)), all with no fixed bail,
issued by the Regional Trial Court, Branch 7, Bayugan City, Agusan del Sur.
8.
The source submits that the charges were brought on the basis of a complaint lodged
by officials of the Municipal Police Station in Sibagat and another individual whose identity
remains uncertain, as no documentation was provided to Ms. Naul about the complaint. The
source notes that, according to credible sources, that individual is a relative of an alleged
victim of kidnapping and serious illegal detention (criminal case No. 6527), who is believed
to be a member of the Citizen Armed Force Geographical Unit. The source specifies that the
Unit is an irregular auxiliary force of the Armed Forces of the Philippines.
9.
The source explains that the charges were brought in May 2019 in connection with a
military offensive that was allegedly conducted by the New People’s Army, an armed rebel
group, against the Philippine Army. The incident took place at around 3 a.m. on 19 December
2018, at the patrol base located in New Tubigon, Sibagat, Agusan del Sur. Ms. Naul was
accused, along with other individuals, of allegedly having attacked and burned the patrol base
and of having abducted members of the Civilian Armed Forces Geographical Unit Active
Auxiliary.
10.
According to the source, the court order stated that all the accused had allegedly
deliberately, feloniously and forcibly entered the patrol base located in New Tubigon by
destroying the wooden perimeter fence, and that while inside, the suspects had pointed their
firearms of unknown calibre at the victims and threatened them and had unlawfully taken
government-issued firearms against the will of the victims. When all the victims, including
2 Philippine Army soldiers and 12 on-duty members of the Civilian Armed Forces
Geographical Unit Active Auxiliary, had been neutralized, they were taken as hostages.
Thereafter, all suspects intentionally burned the patrol base, which caused damage totalling
100,000 pesos. All the victims were then forcibly taken to the mountainous area of Agusan
del Sur.
11.
The source submits that the above-mentioned charges were fabricated and that
evidence is available demonstrating that on that day, Ms. Naul was in another part of the
country.
12.
The source reports that on the day of her arrest, Ms. Naul was transferred to Cagayan
de Oro City, where she was temporarily held in one of the detention cells of the Criminal
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Investigation and Detection Group, which is the primary investigative arm of the Philippine
National Police, at Camp Evangelista in Cagayan de Oro, where the Fourth Infantry Division
of the Philippine Army is stationed
13.
On 17 May 2020, Ms. Naul was transferred to the provincial detention and
rehabilitation centre of Agusan del Sur, which is located in the Municipality of Prosperidad,
where she remains detained. The forces holding the detainee in custody were reported to be
the Provincial Correctional and Security Management Office, Agusan del Sur.
14.
It is reported that Ms. Naul is being detained under the initial arrest warrant issued by
the Regional Trial Court; the Court, however, set no fixed bail. The source specifies that Ms.
Naul has not yet been brought before a court to answer criminal charges, and faces continued
detention until her arraignment.
15.
The source states that on 10 July 2020, an omnibus motion for reconsideration of the
judicial finding of probable cause, seeking to quash the warrant of arrest with urgent motion
to defer the implementation thereof, was filed on behalf of Ms. Naul before Regional Trial
Court, Branch 7, in Bayugan City, Agusan del Sur. The motion is still pending resolution.
16.
Subsequently, on 10 March 2021, a supplemental manifestation in support of the
previously filed omnibus motion was filed before the same court. The supplemental
manifestation contained as an attachment a report of the Commission on Human Rights of
the Philippines, in which, the source states, the Commission found that Ms. Naul’s right to
protection of her reputation and honour was violated by reason of her being “red-tagged” (the
practice of blacklisting individuals or organizations critical or not supportive of government
policy and actions).
17.
The source also reports that prisons have become a hotspot for the coronavirus disease
(COVID-19), and that Ms. Naul remains detained in overcrowded and unsanitary conditions
that put her life at imminent risk. She suffers from asthma and has a heart condition.
18.
The source submits that the detention of Ms. Naul is arbitrary and falls into categories
I, II, III and V of the Working Group. It argues that her arrest and detention lacked sufficient
evidence, were a direct consequence of her work as a human rights defender and were
procedurally flawed.
19.
In relation to category I, the source specifies that there is no legal basis for the
detention of Ms. Naul. The charges under which she is detained stem from a military
offensive allegedly conducted by the New People’s Army, an armed rebel group, against the
Philippine Army. However, according to the source, the complaints failed to establish the
positive identities of Ms. Naul and 22 other individuals indicted in the same case as being the
perpetrators of, or participating in, the crimes committed at 3 a.m. on 19 December 2018.
20.
The source adds that Ms. Naul and the other 22 individuals indicted in the case
submitted proof of their respective activities and locations at the time of the crime. Records
show that on 19 December 2018, Ms. Naul was brought to St. Ignatius Hospital in Cagayan
de Oro City to undergo laboratory examinations to determine the causes of the bronchitis and
asthma that she was experiencing at the time. On 20 December 2018, Ms. Naul was brought
to Polymedic General Hospital for further medical testing. The source states that the
evidence, her hospital records, has been rejected by the prosecution.
21.
In relation to category II, the source argues that the current deprivation of liberty of
Ms. Naul results from the exercise of universally recognized human rights, in particular the
rights to freedom of opinion, expression and association.
22.
The source recalls that freedom of opinion and expression and of association are
fundamental human rights enshrined in articles 19 and 20 of the Universal Declaration of
Human Rights and articles 19 and 22 of the International Covenant on Civil and Political
Rights, to which the Philippines is a State party. The source submits that the Government
must respect, protect and fulfil the right to hold and express opinions, including those that
are not in accordance with its official policy, as well as to manifest personal convictions at
odds with its official ideology, under the jus cogens of customary international law.
23.
The source notes that the Human Rights Committee, in its general comment No. 34
(2011) on the freedoms of opinion and expression, stated that restrictive measures on freedom
A/HRC/WGAD/2022/14
4
of expression must not be overbroad, and that they must conform to the principle of
proportionality; they must be appropriate to achieve their protective function; they must be
the least intrusive instrument among those which might achieve their protective function; and
they must be proportionate to the interest to be protected. The Committee notes that the value
placed by the Covenant upon uninhibited expression is particularly high in the circumstances
of public debate in a democratic society concerning figures in the public and political domain.
24.
The source submits that Ms. Naul has been deprived of her liberty as a result of
politically motivated charges brought against her. The charges clearly appear to be retaliation
for her human rights work, constituting a violation of her right to equality before the law.
The source reiterates that while the police claim that she is a member of the New People’s
Army and could, as such, have participated in the attack on the military in Agusan del Sur in
December 2018, there is evidence proving that she was in another part of the country on that
day.
25.
The source states that Ms. Naul is among numerous human rights defenders who have
been identified by the Government as part of a practice of red-tagging. In the case of Ms.
Naul, she was reportedly accused of being a member of a front group for the armed wing of
the Communist party.
26.
According to the source, the Government has not only failed in its duty to take the
measures necessary to prevent and halt discrimination against Ms. Naul on the basis of her
status as human rights defender, but has also actively participated in those arbitrary actions
by the misusing the criminal justice system through the practice of red-tagging.
27.
The source recalls that a number of government-controlled media outlets reported that
Ms. Naul was involved in a progressive human rights group believed to be a front
organization for the Communist Party of the Philippines. The source claims that the existence
of such reports further indicates that Ms. Naul’s arrest and subsequent detention form part of
a broader attack on independent civil society and human rights defenders in the Philippines,
and on Karapatan in particular. The source notes that, in response to similar accusations, the
organization was cited numerous times in the report of the Secretary-General on reprisals
dated 25 September 2020.2
28.
The source submits that Ms. Naul’s arrest and detention based on her status as a
member of Karapatan constitutes an unlawful restriction of freedom of association, in
violation of article 20 of the Universal Declaration of Human Rights and article 22 of the
Covenant.
29.
In relation to category III, the source submits that Ms. Naul has been denied her
fundamental right to a fair trial, which is guaranteed by article 10 of the Universal Declaration
of Human Rights and articles 14 and 16 of the Covenant.
30.
The source specifies that, in the present case, international norms relating to the right
to a fair trial have not been totally or partially observed. The source recalls that Ms. Naul was
not officially provided with copies of the complaints, as required by domestic law. She was
made aware of the cases brought against her only informally.
31.
Moreover, the source states that Ms. Naul and the 22 others indicted in the same case
were not named in the original complaint, but they were subpoenaed by the prosecutor despite
that omission. The name of Ms. Naul was later included in the supplemental complaints that
were filed by the alleged victims of kidnapping. Nonetheless, as with the original complaint,
Ms. Naul was not officially furnished a copy of the supplemental complaints. The source
submits that the failure to provide Ms. Naul with access to the relevant documentation was
contrary to national law.
32.
It is recalled by the source that the complaints failed to establish positive identification
of Ms. Naul and the other 22 individuals as being the perpetrators of, or participating in, the
crimes committed at 3 a.m. on 19 December 2018. The evidence that Ms. Naul has provided
– hospital records proving that on 19 December 2018, she was brought to St. Ignatius
Hospital in Cagayan de Oro City to undergo laboratory examinations and that on 20
2 A/HRC/45/36, annex II.
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5
December 2018, she was brought to Polymedic General Hospital for further medical testing
– has been rejected by the prosecution.
33.
In relation to category V, the source submits that while the deprivation of liberty of
Ms. Naul has resulted from the active violation of civil and political rights, there is a strong
presumption that it also constitutes a violation of international law on the grounds of
discrimination based on political or other views. The source submits that, in particular, Ms.
Naul is being discriminated against on the basis of her status as a human rights defender and
in violation of her rights to equality before the law and to equal protection of the law under
article 26 of the Covenant.
Response from the Government
34.
On 11 August 2021, the Working Group transmitted the allegations from the source
to the Government of the Philippines under its regular communications procedure. The
Working Group requested the Government to provide, by 12 October 2021, detailed
information about Teresita Naul and to clarify the legal provisions justifying her continued
detention, as well as its compatibility with the obligations of the Philippines under
international human rights law, and in particular with regard to the treaties ratified by the
State.
35.
On 6 September 2021, the Government submitted its response, in which it informed
the Working Group that, based on the information received on 16 August 2021, the trial court
had quashed the criminal information against Ms. Naul for its failure to establish her
participation in the crimes she allegedly committed. As a result, Ms. Naul had already been
released from detention, rendering moot the request and arguments of the Working Group.
36.
The Government considers it important to address the points raised in the Working
Group’s communication, stressing in that regard that neither the Government of the
Philippines nor any of its organs violated Ms. Naul’s constitutional rights or the established
principles of international law.
37.
In its response to the communication from the source, the Government considered the
issues contained therein (see paras. 38−57 below) and summarized the points the source
raised in Ms. Naul’s case. In respect of the allegations regarding the legality of Ms. Naul’s
detention, the Government noted the following:
(a)
Her arrest and detention were allegedly based on insufficient evidence and
were a direct consequence of her work as a human right defender;
(b)
Several alleged procedural irregularities in the conduct of Ms Naul’s case were
cited as evidence that she was denied her fundamental right to a fair trial;
(c)
It is alleged that prisons have become a hotspot for COVID-19 and that Ms.
Naul remains detained in overcrowded and unsanitary conditions that put her life at imminent
risk, and it is noted that Ms. Naul has filed a request for entitlement to other custodial
remedies pending the resolution of her case.
38.
The Government emphasizes that Ms. Naul has been charged with the following non-
bailable offences: destructive arson (article 320 of the Revised Penal Code), kidnapping and
serious illegal detention (article 267 of the Code) and robbery with violence against or
intimidation of persons (article 195 of the Code). It submits that Ms. Naul’s plea for
provisional release should have been addressed to the court having jurisdiction of her case.
Under Philippine laws, the temporary release of an accused can be granted only through
either bail or recognizance. The Government refers to section 5 of the Recognizance Act of
2012 (Republic Act No. 10389).
39.
The Government refers to the right to bail provided under section 7, rule 114 of the
Rules of Court. which stipulates that a capital offence or an offence punishable by reclusion
perpetua, or life imprisonment, is not bailable, regardless of the state of the criminal
prosecution. Moreover, under article III (13) of the 1987 Constitution of the Philippines,
those charged with such offences, when evidence of guilt is strong, are not entitled to bail
before conviction. The Government explains that the determination of whether the evidence
of guilt is strong must, however, be made before the trial court where the information was
A/HRC/WGAD/2022/14
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filed. In addition, in the case of an offence punishable by reclusion perpetua, the granting of
bail is a matter of discretion on the part of the trial court, and cannot be allowed unless the
prosecution has been notified of the hearing. The Government further submits that the
indispensability of conducting a hearing with notice to the prosecution has been explained in
a number of cases decided by the Supreme Court.3
40.
In respect of Ms. Naul’s assertion that she has been denied her fundamental right to a
fair trial, the Government notes that there is a question of fact when doubt arises as to the
truth or falsity of the alleged facts.4 The Government submits that the question posed by Ms.
Naul should be addressed to the trial court having jurisdiction over her case, as it involves
assertions that raise questions of fact, which in practice are addressed to the sound discretion
of the court.
41.
On the current situation caused by the COVID-19 pandemic, the Government
highlights the lockdowns and physical closures of government agencies, including the courts,
making it difficult, if not impossible to address and dispose all of the courts’ docket with
dispatch. Nevertheless, since the start of the pandemic, the Supreme Court has adopted
measures not only to decongest detention facilities but also, in the light of the increasing
number of COVID-19 cases, to provide the necessary protection and safety to lawyers, judges
and litigants.
42.
The Government refers to several circulars on COVID-19-related matters, including
on the release of qualified persons deprived of liberty, on the electronic filing of criminal
complaints and information, and posting of bails, on the conduct of fully remote
videoconference hearings, on the online filing of complaints or information and posting of
bail due to the rising number of cases of COVID-19 infection and on creating a task force to
address the rising number of cases of COVID-19 infection.
43.
On the basis of the foregoing, the Government submits that it is clear that Ms. Naul
has not been left without any legal recourse in asserting her claims.
44.
In respect of Ms. Naul’s invocation that she be allowed to be released on the grounds
that the unsanitary conditions at jail facilities put her life at imminent risk, the Government
submits that such assertion violates the equal protection clause of the 1987 Constitution, as
Ms. Naul is attempting to set herself apart by making an unwarranted and impermissible
classification. In that regard, the Government refers to article III (1) of the Constitution,
which provides that no person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws.
45.
In supporting its position, the Government likens Ms. Naul’s case to the recent case
entitled “In the Matter of the Urgent Petition for the Release of Prisoners on Humanitarian
Grounds in the Midst of the COVID-19 Pandemic” (Almonte et al. v. People of the
Philippines),5 wherein the Supreme Court directed the petitioners to file their respective
applications for bail in the courts where their criminal case was pending, after treating the
petitions as applications for bail or recognizance. Adopting the arguments raised by the
respondents therein, the Government argues that, in the present case, the equal protection
clause exists to prevent undue favour or privilege. Recognizing the existence of real
differences among individuals, the equal protection clause does not demand absolute
3 For example, in Enrica B. Aguirre and Nenita A. Dela Cruz v. Judge Candido R. Belmonte, the
Supreme Court of the Philippines held that it was an established legal principle that when an offence
was punishable by reclusion perpetua, the trial court must conduct a hearing in a summary
proceeding, to allow the prosecution an opportunity to present, within a reasonable time, all evidence
it might desire to produce to prove that the evidence of guilt against the accused was strong, before
resolving the issue of bail for the temporary release of the accused (Administrative Matters No. RTJ-
93-1052, Resolution, 27 October 1994).
4 Supreme Court of the Philippines, Far Eastern Surety and Insurance Co., Inc. v. People of the
Philippines, General Register No. 170618, Decision, 20 November 2013.
5 Supreme Court of the Philippines, General Register No. 252117, Decision, 28 July 2020.
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equality. It merely requires that all persons be treated alike, under like circumstances and
conditions, both as to the privileges conferred and liabilities enforced.6
46.
In Remman Enterprises, Inc. v. Professional Regulatory Board of Real Estate
Service,7 the Court, citing Ichong v. Hernandez and Sarmiento,8 explained the concept of
equal protection: the equal protection of the law clause is against undue favour and individual
or class privilege, as well as hostile discrimination or the oppression of inequality. It is not
intended to prohibit legislation that is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute equality among residents;
it merely requires that all persons be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons falling within such class, and
reasonable grounds exist for making a distinction between those who fall within such class
and those who do not.
47.
On the issue of equal protection, the Government concludes that the Constitution does
not require absolute equality. It is enough that all persons under like circumstances or
conditions are given the same privileges and required to meet the same obligations.9 The
Government reiterates that the equal protection of the law clause is against undue favour and
individual or class privilege, as well as hostile discrimination or the oppression of
inequality.10 To give preference to the petitioners, among all other prisoners languishing in
jail for their criminal infractions, is tantamount to giving them preferential treatment or undue
favour, and discriminating against all the other prisoners.
48.
In Remman Enterprises, Inc. v. Professional Regulatory Board of Real Estate Service,
the Government maintained that there was no substantial difference which set the petitioners
(who likewise claimed themselves as political prisoners) apart from all other persons detained
in jail. The petitioners were not a unique class that should be treated differently. The
petitioners should be treated like all the other prisoners in the entire country, regardless of
age, health and status. Like other prisoners, they were under detention because they had
violated the law. To give preference to the petitioners’ release over the release of all other
similarly situated prisoners would give them undue favour and would result in inequality and
discrimination.
49.
The Government addresses the allegations that Ms. Naul’s arrest and detention formed
part of a broader attack on independent civil society and human rights defenders in the
Philippines, or red-tagging, and on Karapatan in particular, as well as the numerous
references contained in the report of the Secretary-General on reprisals.11 In regard to red-
tagging and the alleged reprisals against Karapatan, the Government cites extensively the
responses provided to the Secretary-General in its report, The Philippine Human Rights
Situationer.12 The Government submits that it has exhaustively addressed allegations in
respect of Karapatan in its response to draft reports of the Secretary-General on reprisals as
well as in the Situationer. The Government refers to the Supreme Court verdict dismissing
allegations of extrajudicial killings, reprisals, intimidation, threats and red-tagging in the
highly publicized case filed by Karapatan, Gabriela National Alliance of Women and the
Rural Missionaries of the Philippines.13 In that case, the petitioners alleged that officials of
the National Task Force to End Local Communist Armed Conflict had viciously red-tagged
them as front organizations for the Communist Party of the Philippines-New People’s Army-
6 Supreme Court of the Philippines, Himagan v. People of the Philippines, General Register No.
113811, Decision, 7 October 1994.
7 Supreme Court of the Philippines, General Register No. 197676, Decision, 4 February 2014.
8 Supreme Court of the Philippines, General Register No. L-7995, Decision, 31 May 1957.
9 Supreme Court of the Philippines, Conrado L. Tiu et al., v. Court of Appeals et al., General Register
No.127410, Decision, 20 January 1999.
10 Ichong v. Hernandez and Sarmiento.
11 A/HRC/42/30, annex II, paras. 79−86. See also A/HRC/39/41, paras. 61–62, and annex I, paras. 84–
85.
12 See https://www.officialgazette.gov.ph/downloads/2020/06jun/20200609-PH-Human-Rights-
Situationer.pdf.
13 Court of Appeals, Fourteenth Division, Manila, Karapatan, et al. v. H.E. Rodrigo Roa Duterte, Court
of Appeals General Register, Special Cases Section No. 00067, Decision, 28 June 2019.
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8
National Democratic Front, which put their life, liberty and security at risk, and the
petitioners filed for writs of amparo and data. The Court ruled that there was no substantial
evidence to establish the petitioners’ allegations.
50.
The Government submits that Karapatan presents an emblematic case for the merits
of enhancing due diligence among entities of the United Nations when assessing allegations
from sources and expecting civil society to observe reasonable standards of accountability
for the claims they present before United Nations human rights mechanisms.
51.
The Government submits that contrary to allegations of shrinking civic space,
Philippine civic space has been expanding with the Government’s steadfast advocacy for the
empowerment and greater participation of a multiplicity of civil society actors, especially the
less-resourced grassroots community-based organizations, rights holders and human rights
defenders, to include indigenous peoples, rebel returnees, parents of children recruited into
armed combat, rescued child combatants, and the victims of Communist Party of the
Philippines-New People’s Army-National Democratic Front atrocities and their families.
52.
In its note to the Secretary-General dated June 2019, the Government of the
Philippines stated that Karapatan was one of the non-governmental organizations that were
unlawfully operating in the country, with data from the Securities and Exchange Commission
of the Philippines showing that as at 15 April 2019 its corporate existence and registration
had been ordered revoked more than 10 years prior to that date, on 25 October 2005, for non-
filing of reports.
53.
The Government also stated that across different political administrations, including
the current one, Karapatan had a long track record of peddling questionable facts and bloated
figures concerning cases of deaths and human rights violations in the Philippines.
54.
The Government referred to a case in 2006 in which Karapatan called international
attention to and raised concerns about an alleged total of 724 extrajudicial killings from the
period 2001 to 2006 during the administration of former President Gloria M. Arroyo, where
official sources indicated a figure of only 111. An independent domestic body, the Melo
Commission, was created to investigate the allegations, verify the cases and establish the
facts. The Government submits that Karapatan failed to substantiate its figures and present
evidence for its claims before that body, which was duly constituted to take action on such
alarming claims. The Melo Commission Report of 22 January 2007 deplored the refusal of
Karapatan and its allied groups to come forward and cooperate.
55.
The Government further submits it has no policy of red-tagging. It has repeatedly
drawn attention to the pattern, by certain sources, of allegations of reprisals, especially before
the United Nations, and highlighted the need to take into account the country’s political
context relating to the activities of the Communist Party of the Philippines-New People’s
Army-National Democratic Front in examining such allegations.
56.
The issue of red-tagging or “red-baiting” was the subject of extensive public hearings
conducted by the Committee on National Defense and Security, Peace, Unification and
Reconciliation of the Senate of the Philippines on 3 and 24 November and 1 December 2020.
The hearings were based on Senate resolution No. 559, dated 28 October 2020, directing an
inquiry into the alleged red-tagging or red-baiting of certain celebrities, personalities,
institutions and organizations by military officials.
57.
The Senate inquiry provided an opportunity for all sides, including the security sector,
incumbent and former members of the Makabayan bloc of the House of Representatives, and
civil society actors, such as former rebels, to present their information, evidence and accounts
and to be heard objectively by the public. The hearings resulted in the adoption, on 10 March
2021, of the 77-page report No. 186 of the Committee on National Defense and Security,
Peace, Unification and Reconciliation, in which the Committee comprehensively examined
the issue of red-tagging and made recommendations to address it. 14 In the report, the
Committee determined that, for the supposed aggrieved parties seeking to avail themselves
of remedies to wrongful claims of being associated with the Communist Party of the
Philippines-New People’s Army-National Democratic Front, sufficient legal remedies were
14 See https://legacy.senate.gov.ph/lisdata/3455831378!.pdf.
A/HRC/WGAD/2022/14
9
already in place. In addition, the Government highlighted judicial remedies to persons whose
constitutional rights, particularly the right to liberty, had been violated by State agents. The
Government refers to instances in which parties have availed themselves of those remedies.15
Further submissions from the source
58.
On 30 September 2021, the Government’s response was transmitted to the source for
its further comments. In its reply dated 16 October 2021, the source submits that in June
2021, Regional Trial Court, Branch 7 in Bayugan City, Agusan del Sur quashed the criminal
information against Ms. Naul in three16 out of the four criminal cases filed against her. The
decision stated that the warrant issued for her arrest suffered constitutional defects, not to
mention that the same facts and circumstances had led the Court to reasonably believe that
the accused had not committed the offence alleged in the three cases. The fourth case –
criminal case No. 6527 for kidnapping and serious illegal detention,17 wherein Ms. Naul is
one of the accused – is still pending resolution before the same Regional Trial Court, Branch
7, in Bayugan City.
59.
Criminal case No. 6527 was filed against Ms. Naul and 544 other individuals on the
basis of a separate complaint; however, it contains allegations that are intertwined with those
in criminal cases No. 6524, No. 6525 and No. 6526. Case No. 6527 was filed at about the
same time as cases No. 6524, No. 6525 and No. 6526 and was also assigned by raffle to
Regional Trial Court, Branch 7. The source submits that Ms. Naul, through her lawyers in
the Union of Peoples’ Lawyers in Mindanao, moved to quash the complaint in both the Office
of the Provincial Prosecutor in Agusan del Sur and in Regional Trial Court, Branch 7, even
though Ms. Naul was not officially furnished copies of the complaint and other supporting
evidence, as required by the Rules on Criminal Procedure.
60.
In resolving the motion in May 2020, Regional Trial Court, Branch 7, remanded case
No. 6527 to the Office of the Provincial Prosecutor for reinvestigation.18 On 16 July 2020,
Ms. Naul, by counsel, submitted her counter-affidavit and supporting documents to the Office
of the Prosecutor, and on the same date, furnished a copy to the Court to refute the charges
against her. To date, no result of the reinvestigation from the Office of the Prosecutor has
been made available.
61.
In July 2020, Ms. Naul, by counsel, filed with Regional Trial Court, Branch 7, a
motion to dismiss the case on grounds of violation of the right to due process and right to
speedy disposition of cases.19 The motion has not yet been resolved. According to the source,
she remains detained at the provincial detention and rehabilitation centre in the Municipality
of Prosperidad, Agusan del Sur.
62.
In respect of Ms. Naul’s detention, allegedly based on red-tagging and imposed as a
consequence of her work as a human rights defender, the source recalls the reports of the
Secretary-General on reprisals.20 The United Nations High Commissioner for Human Rights
noted that multiple United Nations actors had addressed concerns about red-tagging, or
labelling as communists or terrorists, as a tactic used by State and non-State actors to vilify,
including in forums of the United Nations, individuals and groups who cooperated with
entities of the United Nations system. 21 Special procedure mandate holders and the
spokesperson for the High Commissioner have expressed serious concerns about the red-
tagging of civil society and human rights defenders, including members of the Commission
on Human Rights of the Philippines.
15 Ibid.
16 Criminal cases No. 6524, No. 6525 and No. 6526 (for details, see para. 7 above).
17 In criminal case No. 6527, according to information filed with Regional Trial Court, Branch 7, it is
alleged that on 19 December 2018, in the Municipality of Sibagat, Agusan del Sur, Ms. Naul and her
544 co-accused, “being armed with high-powered firearms” and “by means of force and
intimidation”, kidnapped and detained Bernabe Baiwasan Salahay, thus depriving him of his liberty.
18 Regional Trial Court, Branch 7, order dated 21 May 2020.
19 Dated 28 July 2020 and sent to Regional Trial Court, Branch 7, via registered mail on 4 August 2020.
20 See A/HRC/42/30, A/HRC/44/22 and A/HRC/45/36.
21 A/HRC/45/36, annex I, para. 98.
A/HRC/WGAD/2022/14
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63.
The Commission on Human Rights of the Philippines has also denounced the practice
as a counter-insurgency policy of the State that targets critics, journalists and union workers,
including members of the National Union of Peoples’ Lawyers, the Union of Peoples’
Lawyers in Mindanao22 and Karapatan.23
64.
In its human rights bulletin issued on 11 June 2019, the Commission on Human Rights
in Northern Mindanao declared that the practice of red-tagging or red-baiting was a serious
human rights concern.
65.
Insofar as Ms. Naul is concerned, on 28 December 2020, the Commission on Human
Rights in Northern Mindanao adopted resolution No. CHR-XIII-2020-014713 on the red-
tagging of Ms. Naul in violation of the right to protection of honour and reputation. In the
resolution, the Commission found that the pleadings filed in court simply enumerated the
names of all the accused, Ms. Naul being one of them, without any substantial evidence that
the accused were responsible in the attack. There is something untoward in identifying those
500 individuals and generalizing them all as members of the New People’s Army absent
proof of their participation during the attack. This is a case of red-tagging.
66.
The source submits, citing several procedural irregularities in the conduct of her case,
that Ms. Naul has allegedly been denied her fundamental right to a fair trial.
67.
The mere imputation of a non-bailable offence to a person without probable cause and
without opportunity to be heard is already a violation of the right to due process enshrined in
the 1987 Constitution, which states that no person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the equal protection of
the laws (article III (1)).
68.
In its resolution remanding criminal case No. 6527 to the Office of the Prosecutor,
Regional Trial Court, Branch 7, noted that Ms. Naul did not receive the subpoena with the
attached affidavits of the complainant and those of his witnesses, which would have required
her to submit counter-evidence during the preliminary investigation. The non-receipt of the
subpoena translated into the absence of an opportunity on the part of Ms. Naul to rebut the
accusation against her. In the same resolution, the Court stated that the opportunity to be
heard meant that the accused would have the chance to present evidence and arguments
before the prosecution that resolved and/or determined whether probable cause existed to
engender a well-founded belief that the accused were probably guilty of the offence charged.
An opportunity to be heard is indispensable and essential to the administration of due process
of law, knowing that it is one of the hallmarks of the due process clause under the
Constitution.
69.
Finding that Ms. Naul was not afforded her right to due process, the Court remanded
the case to the Office of the Provincial Prosecutor for reinvestigation. As noted above, there
has as yet been no result of the reinvestigation from the Office.
70.
In regard to Ms. Naul’s right to a fair and speedy trial,24 the source submits that in
criminal case No. 6527, the lapse of more than one year without so much as any comment or
resolution of any tenor on the part of the Provincial Prosecutor, despite the presence of the
records at his disposal, and in utter disregard of the prescriptive periods allowed under
pertinent rules,25 and the lapse of more than two years from the time when the case was first
lodged before the Court, amount to an inordinate delay of the proceedings, which thus
constitutes a violation of Ms. Naul’s constitutional right to a speedy disposition of the case.
71.
The source submits that, considering the numerous pleadings filed before the Court
and the Office of the Provincial Prosecutor for the dismissal of the charges against Ms. Naul
on constitutional grounds, her case could have been dismissed earlier. Ms. Naul could have
22 See https://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-ann-de-guia-on-the-harassment-
of-some-members-of-the-uplm-and-nupl/.
23 See https://www.hrw.org/news/2020/08/25/philippine-rights-group-under-attack.
24 Article III (16), of the 1987 Constitution states that all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial or administrative bodies.
25 National Prosecution Service, Revised Manual for Prosecutors (Manila, Department of Justice of the
Philippines, 2008).
A/HRC/WGAD/2022/14
11
been released earlier, making space in the highly congested detention facility in Agusan del
Sur and thereby contributing to the efforts to prevent the spread of COVID-19 in detention
centres.
72.
On 8 March 2022, the source informed the Working Group that Ms. Naul had been
released on 28 October 2021. The court reportedly held that the affidavits of the complainants
were inadequate and that the facts and circumstances led it to believe that the accused had
not committed the offences charged.
Discussion
73.
The Working Group thanks the source and the Government of the Philippines for their
submissions.
74.
The Government of the Philippines states that based on the response received on 16
August 2021 from government authorities, the trial court has quashed the criminal
information against Ms. Naul due to the Court’s failure to establish her participation in the
crimes she allegedly committed. As Ms. Naul has already been released from detention, the
Government submits that the request and arguments of the Working Group are rendered
moot. On that matter, on 8 March 2022, the source reported that Ms. Naul was released on
28 October 2021, pursuant to a court decision on cases No. 6524, No. 6525 and No. 6526, as
the facts and circumstances led the Court to believe that the accused had not committed the
offences charged. A fourth court case against her is still pending, indicating that Ms. Naul
could be subject to further arrest and detention.
75.
As a preliminary matter, the Working Group observes that the release of Ms. Naul
does not prevent the Working Group from adopting an opinion, as there is no provision in its
methods of work that precludes consideration of a case in such circumstances. Indeed, the
Working Group considers it necessary to render an opinion given that the allegations relating
to Ms. Naul’s deprivation of liberty in the Philippines are serious and warrant further
attention,26 and that the case concerns the peaceful exercise of fundamental rights in the
Philippines.
76.
In determining whether the deprivation of liberty of Ms. Naul is arbitrary, the Working
Group has regard to the principles established in its jurisprudence to deal with evidentiary
issues. If the source has presented a prima facie case for breach of the international law
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.27
Category I
77.
The Working Group will first determine whether it is impossible to invoke any legal
basis to justify Ms. Naul’s arrest and detention from 15 March 2020 until the time of her
release that would render her detention arbitrary under category I.
78.
As at the date of the source’s submission of 7 July 2021, Ms. Naul had not been
brought before a judge. The Government does not rebut that submission. The Working Group
recalls that legal safeguards against arbitrary deprivation of liberty as encapsulated in article
9 of the Universal Declaration of Human Rights and article 8 of the Covenant require anyone
arrested or detained on a criminal charge to be brought promptly before a judge authorized
by law to exercise judicial power. As the Working Group has reiterated in its jurisprudence,
and the Human Rights Committee has specified, 48 hours is ordinarily sufficient to satisfy
the requirement of bringing a detainee “promptly” before a judge or other officer authorized
by law following his or her arrest; any longer delay must remain absolutely exceptional and
be justified under the circumstances.28 Accordingly, the Working Group finds that Ms. Naul’s
pretrial detention was undertaken in the absence of judicial review of its legality and in
26 See opinions No. 50/2017, para. 53 (c); and No. 55/2018, para. 59.
27 A/HRC/19/57, para. 68.
28 See, for example, opinions No. 6/2017, No. 30/2017, No. 49/2019 and No. 66/2020. See also Human
Rights Committee, general comment No. 35 (2014), para. 33.
A/HRC/WGAD/2022/14
12
violation of her right to be brought promptly before a judicial authority under article 9 (3) of
the Covenant.29
79.
The source submits that the charges upon which Ms. Naul was arrested have no fixed
bail. The Working Group understands this to mean Ms. Naul was arrested and charged on the
basis of non-bailable offences. The Government confirms that Ms. Naul was charged under
non-bailable offences and refers to relevant domestic laws in that regard.
80.
The Working Group recalls that it has repeatedly stated in its jurisprudence that, even
when the detention of a person is carried out in conformity with national legislation, the
Working Group must ensure that the detention is also consistent with the relevant provisions
of international law.30 The Working Group, which has previously noted that Philippine law
– should it be determined that the charges involve a non-bailable offence – precludes
consideration, or reconsideration on a periodic basis, of a detainee’s individual
circumstances, reiterates its view that automatic rejection of the applicant’s applications for
bail, devoid of any judicial control of the particular circumstances of the person’s detention,
is incompatible with the guarantees of article 9 (3) of the Covenant.31
81.
In accordance with article 9 (3) of the Covenant, pretrial detention should be the
exception, rather than the norm, and should be ordered for the shortest period of time
possible. Liberty is recognized under article 9 (3) of the Covenant as the core consideration,
with detention as an exception thereto. Ms. Naul’s detention – bearing in mind that pretrial
detention should be the exception rather than the rule – lacked a legal basis, as it was not
based on an individualized determination that it was reasonable and necessary, taking into
account all the circumstances, for such purposes specified in law as to prevent flight,
interference with evidence or the recurrence of crime, accompanied by consideration of
alternatives, such as bail, electronic bracelets or other conditions.32 Moreover, international
standards require that non-custodial measures be prioritized for women.33
82.
The Human Rights Committee has found that the State party must demonstrate that
there were no less invasive means available of achieving the same ends of detention – that is,
mitigating the risk of flight, interference with evidence or reoffending – that might arise from
release on bail, for example, by the imposition of reporting obligations, sureties or other
conditions.34
83.
In the light of the above, the Working Group finds that non-bailable offences, which
include automatic pretrial detention regimes for certain offences, are inconsistent with the
need for individualized assessment, as they preclude consideration of the detainee’s
individual circumstances.35 The Working Group thus concludes that Ms. Naul’s pretrial
detention was in violation of article 9 of the Universal Declaration of Human Rights and
article 9 (1) and (3) of the Covenant.
84.
Moreover, the source submits that on 10 June 2021, the arrest warrant for Ms. Naul
was quashed for being null and void by a court. However, the Working Group notes with
concern that according to the update provided by the source, Ms. Naul was released from
detention only on 28 October 2021, more than four months after that determination by the
court. The Working Group is unable to reconcile why Ms. Naul continued to be detained after
29 Opinion No. 81/2020, para. 56.
30 See, for example, opinions No. 46/2011, No. 42/2012, No. 50/2017, No. 79/2017, No. 1/2018, No.
20/2018, No. 37/2018 and No. 50/2018.
31 Opinions No. 24/2015, paras. 35−39; and No. 61/2018, paras. 47−48.
32 A/HRC/19/57, paras. 48–58.
33 Rules 57−66 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial
Measures for Women Offenders (the Bangkok Rules). See also deliberation No. 12 (A/HRC/48/55,
annex), paras. 7–9.
34 Baban v. Australia (CCPR/C/78/D/1014/2001), para. 7.2. See also general comment No. 35 (2014),
para. 38, in which the Human Rights Committee stated that courts must examine whether alternatives
to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention
unnecessary in the particular case.
35 Opinion 61/2018, paras. 47−48.
A/HRC/WGAD/2022/14
13
the legal basis for her detention as submitted by the authorities, that is, the arrest warrant,
was quashed.
85.
Given the discrepancy between the time of the release of Ms. Naul provided by the
Government and that provided by the source, and the lack of clarity as to when the charges
against her were quashed, the Working Group does not have sufficient information to make
a finding on the matter. However, it takes the opportunity to reiterate that maintaining a
person in detention after release has been ordered by a court competent to exercise control
over the legality of detention is a manifest violation of article 9 of the Universal Declaration
of Human Rights and article 9 of the Covenant and renders the detention arbitrary, because
it lacks legal basis.36
86.
For the reasons outlined above, the Working Group concludes that Ms. Naul’s pretrial
detention lacks a legal basis and falls under category I.
Category II
87.
The source submits that Ms. Naul was deprived of her liberty for exercising her right
to freedom of opinion, expression and association. As the source does not substantiate the
allegations as to how Ms. Naul was deprived of her liberty for exercising her right to freedom
of opinion and expression, the Working Group is unable to address any violations relating to
those freedoms.
88.
In relation to her right to freedom of association, the source submits that Ms. Naul’s
arrest and detention based on her status as a member of the national council of Karapatan
constitutes an unlawful restriction of freedom of association. The Government, while
providing substantial information on its engagement with Karapatan, does not rebut this
allegation directly.
89.
According to the Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms (Declaration on Human Rights Defenders), everyone has the right,
individually and in association with others, to promote and to strive for the protection and
realization of human rights, and to draw public attention to the observance of human rights.
As the Working Group has observed, belonging to a human rights organization is simply the
legitimate exercise of, among other rights, the right to association.37 Accordingly, it has found
arbitrary detention, based on the exercise of freedom of association based on membership in
a range of human rights organizations.38 Under article 22 (2) of the Covenant, no restrictions
may be placed on freedom of association other than those which are prescribed by law and
which are necessary in a democratic society in the interests, of national security or public
safety, public order, public health or morals, or the protection of the rights and freedoms of
others. There is no indication that those restrictions apply in Ms. Naul’s case.
90.
The Human Rights Council has specifically called for States to fully respect and
protect the rights of all individuals to associate freely, especially for persons espousing
minority or dissenting views and human rights defenders. 39 In addition, in its general
comment No. 25 (1996), the Human Rights Committee noted that the right to freedom of
association, including the right to form and join organizations and associations concerned
with political and public affairs, was an essential adjunct to the rights protected by article 25
of the Covenant, which sets out the right to participate in public affairs.
91.
For the above-mentioned reasons, the Working Group finds that Ms. Naul’s rights to
freedom of association under article 20 of the Universal Declaration of Human Rights and
article 22 of the Covenant as well as her rights under article 7 of the Universal Declaration
36 Opinions No. 3/2010, para. 6; No. 3/2011, para. 20; No. 7/2011, paras. 15–17; No. 9/2011, para. 38;
and No. 8/2020, para. 53.
37 Opinion No. 10/1993, para. 5 (h).
38 See, for example, decisions No. 26/1992, para. 6 (h); and No. 10/1993, para. 5 (h); and opinion No.
15/2010, para. 26.
39 Human Rights Council resolution 15/21.
A/HRC/WGAD/2022/14
14
of Human Rights and article 26 of the Covenant have been violated. The Working Group
thus considers that Ms. Naul’s deprivation of liberty is arbitrary under category II.
Category III
92.
The source reported various instances of violations of Ms. Naul’s fundamental fair
trial rights. The Government responded that those allegations should be addressed to the trial
court having jurisdiction over her case, as they involved assertions that raised questions of
fact which were practically addressed to the sound discretion of the court. The Working
Group does not consider that response to be sufficient, in view of the allegations raised by
the source.
93.
The source notes the following fair trial violations:
(a)
Ms. Naul was not officially provided copies of the complaint against her as
required by domestic law but was made aware only informally;
(b)
Ms. Naul and the 22 other individuals indicted were not named in the original
complaint but were nonetheless subpoenaed by the prosecutor and included in the
supplemental complaint filed by the alleged victim of kidnapping;
(c)
Moreover, Ms. Naul was not provided with the supplemental complaint, which
again violated domestic law.
94.
The source also submits that the above-mentioned complaints failed to establish the
positive identities of Ms. Naul and the 22 others indicted in the same case as perpetrators of
the crimes committed on 19 December 2018 against the Philippine Army. Ms. Naul’s hospital
records, which were submitted as proof of her alibi, were rejected by the prosecution.
According to the source, that evidence would have proved that she was in another part of the
country on the day the crimes occurred. On that basis, the source submits that the charges
against Ms. Naul are fabricated. The Government has not addressed the issue of alibi directly.
95.
In the light of the foregoing, the Working Group find that the violations set out above
breach Ms. Naul’s due process and fair trial rights under article 10 of the Universal
Declaration of Human Rights and article 14 of the Covenant.
96.
The Working Group concludes that the violations of Ms. Naul’s rights to a fair trial
are of such gravity as to render her deprivation of liberty arbitrary, falling within category
III. The Working Group refers the present case to the Special Rapporteur on the independence
of judges and lawyers.
Category V
97.
The source submits that Ms. Naul has been deprived of her liberty as a result of
politically motivated charges brought against her that are in retaliation for her human rights
work and that she is being discriminated against based on her status as a human rights
defender. The source states that Ms. Naul is among numerous human rights defenders who
have been identified by the Government as part of a practice of red-tagging.
98.
The Government denies the allegation that Ms. Naul’s arrest and detention formed
part of a broader attack on independent civil society and human rights defenders in the
Philippines, or red-tagging, and on Karapatan in particular. Additionally, it submits that
contrary to allegations of shrinking civic space, Philippine civic space has been expanding
with the Government’s steadfast advocacy for the empowerment and greater participation of
a multiplicity of civil society actors.
99.
The Working Group reiterates that it applies a heightened standard of review in cases
in which the rights to freedom of movement and residence, freedom of asylum, freedom of
thought, conscience and religion, freedom of opinion and expression, peaceful assembly and
association, participation in political and public affairs, equality and non-discrimination, and
protection of persons belonging to ethnic, religious or linguistic minorities are restricted or
A/HRC/WGAD/2022/14
15
in which human rights defenders are involved.40 Ms. Naul’s role as a human rights defender
in the Philippines requires the Working Group to undertake this kind of intense and strict
scrutiny. Human rights defenders, in particular, have the right to study, discuss, form and
hold opinions on the observance, both in law and in practice, of all human rights and
fundamental freedoms and, through these and other appropriate means, to draw public
attention to those matters.41
100.
Moreover, as established above in respect of category II (see paras. 87−91), Ms.
Naul’s detention resulted from the peaceful exercise of her fundamental right to association
under international law. When detention has resulted from the active exercise of civil and
political rights, there is a strong presumption that the detention constitutes a violation of
international law on the grounds of discrimination based on political or other views.42 The
Working Group recalls the source’s submission that Ms. Naul’s work largely involved
providing aid to alleged political prisoners and victims of human rights violations, where she
organized calls for the release of alleged political detainees and persecuted members of
marginalized sectors.43
101.
In respect of human rights defenders, the Working Group has recognized the necessity
to subject interventions against individuals who may qualify as human rights defenders to
particularly intense review.44 This heightened standard of review by international bodies is
especially appropriate where there is a pattern of harassment by national authorities targeting
such individuals.45 In the case of Ms. Naul, who was 62 years old at the time of her arrest, it
is unclear as to why several units of the police and the army were reportedly involved in her
arrest. In that regard, the Working Group recalls that on 15 April 2020, special procedure
mandate holders addressed concerns to the Government about alleged killings of two
members of Karapatan, raids on offices, arbitrary detention and legal cases against Karapatan
secretariat members and staff from May 2019 to March 2020. The mandate holders described
a pattern of targeting multiple organizations and individuals, stating that it was believed that
all incidents were reprisals for the advocacy work conducted by Karapatan, the Rural
Missionaries of the Philippines and Gabriela National Alliance of Women at the national and
international levels, including for their work before the Human Rights Council. 46 The
Working Group notes with concern the chilling effects of judicial prosecutions on society,
which is furthered by a climate of intimidation that appears to surround the enforcement of
those laws.
102.
The Working Group thus considers that Ms. Naul’s deprivation of liberty constitutes
a violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2, 3
and 26 of the Covenant on the grounds of discrimination based on political or other opinion,
as well as on her status as a human rights defender.
103.
For the reasons set out above, the Working Group finds that Ms. Naul’s deprivation
of her liberty was arbitrary according to category V.47 The Working Group refers the present
case to the Special Rapporteur on the situation of human rights defenders and the Special
Rapporteur on the rights to freedom of peaceful assembly and of association.
Concluding remarks
104.
The Working Group noted with concern the source’s submission that Ms. Naul, who
was 62 years of age at the time of her arrest, suffers from asthma and has a heart condition.
Considering Ms. Naul’s personal condition as well as the general risks posed by COVID-19
to detainees in detention facilities, the Working Group expresses regret that Ms. Naul was
40 See, for example, opinions No. 57/2017, para. 46; No. 94/2017, para. 49; No. 3/2018, para. 40; and
No. 13/2018, para. 22. See also Declaration on Human Rights Defenders, art. 9 (3).
41 See Declaration on Human Rights Defenders; and opinion No. 8/2009, para. 18.
42 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
43 See communication PHL 1/2020, https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
44 Opinion No. 62/2012, para. 39.
45 Opinion No. 39/2012, para. 43.
46 See communication PHL 1/2020, https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
47 See opinions No. 75/2017, No. 79/2017, No. 35/2018, No. 36/2018, No. 45/2018, No. 46/2018, No.
9/2019, No. 44/2019 and No. 45/2019.
A/HRC/WGAD/2022/14
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held in overcrowded and unsanitary conditions that put her life at imminent risk. In
accordance with article 10 (1) of the Covenant, all persons deprived of their liberty must be
treated with humanity and dignity, which would include receiving appropriate medical care.48
States should treat detainees over 60 years of age and those with underlying health conditions
as vulnerable to COVID-19, refraining from holding them in facilities where the risk to their
life is heightened and implementing early release schemes whenever possible.49 The Working
Group refers the present case to the Independent Expert on the enjoyment of all human rights
by older persons.
Disposition
105.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Teresita Naul, being in contravention of articles 2, 7, 9,
10 and 20 of the Universal Declaration of Human Rights and articles 2, 3, 9, 14, 22
and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, II, III and V.
106.
The Working Group urges the Government of the Philippines to ensure a full and
independent investigation of the circumstances surrounding the arbitrary deprivation of
liberty of Ms. Naul and to take appropriate measures against those responsible for the
violation of her rights.
107.
The Working Group requests the Government to bring its laws into conformity with
the recommendations made in the present opinion and with the commitments made by the
Philippines under international human rights law.
108.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the rights to freedom of peaceful assembly and
of association, the Special Rapporteur on the independence of judges and lawyers, the Special
Rapporteur on the situation of human rights defenders and the Independent Expert on the
enjoyment of all human rights by older persons, for appropriate action.
109.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
110.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether compensation or other reparations have been made to Ms. Naul;
(b)
Whether an investigation has been conducted into the violation of Ms. Naul’s
rights and, if so, the outcome of the investigation;
(c)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Philippines with its international obligations in line
with the present opinion;
(d)
Whether any other action has been taken to implement the present opinion.
111.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
112.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
48 Opinion No. 26/2017, para. 66.
49 Deliberation No. 11 (A/HRC/45/16, annex II), paras. 15−16.
A/HRC/WGAD/2022/14
17
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
113.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.50
[Adopted on 1 April 2022]
50 See Human Rights Council resolution 42/22, paras. 3 and 7.