Balao et al. vs. Macapagal-Arroyo et al.

Key Judgment


Legal Relevance

Keywords: Evidence | Systemic Practice | Duty to Investigate | Burden of Proof

Themes: Characteristics of the Crime

The Court defined enforced disappearance as the arrest, detention or abduction of a person by a government official (or organised group or private individual acting with the direct or indirect acquiescence of the government), coupled with the refusal of the State to disclose the fate or whereabouts of the person, or refusal to acknowledge the deprivation of liberty with the aim of placing the person outside the protection of law. Applying this definition, the Court did not find that the victim had been subjected to an enforced disappearance. The Court found that the mere existence of a practice of targeting activists by the military’s counter-insurgency programme was not enough and that the participation of State authorities in the abduction had not been proven, as neither the identities and/or military links of the abductors had not been established. The Court further held that there was no evidence that the victim had been detained uponthe orders of government agents or with their acquiesence. It reversed the Amparo provided by the lower court. In their dissenting opinion, one of the judges considered that the present case could be defined as one of enforced disappearance when read against an ongoing pattern of targeting of political opponents. They also stated that the failure to conduct an effective investigation fell within the Rule on the Writ of Amparo and took issue with the fact that the majority did not pronounce itself on whether the failure amounted to a violation of the rights to life, liberty and security.

The majority of the Court did however find that the police and the military failed in their duty to undertake good faith investigations as they had not actively pursued evidentiary leads provided by the victim’s family and witnesses. The Court stated that presuming that the victim's family will not cooperate is not an excuse for incomplete and one-sided investigations, and that their reluctance to cooperate could be explained by their political views and being perceived by the military as enemies of the State. For these reasons, the Court found that the police and the military failed to apply a standard of extraordinary diligence in the investigation of the abduction, instead seeming intent on building a case against other persons to deflect any suspicion of their involvement in the disappearance.

Judgment Date

December 13, 2011

Country

Philippines

Judicial Body

Philippines - Supreme Court

Articles not violated / not dealt with

Section 1 [RWA]

Facts of the Case

Mr. James M. Balao, founder of a coalition of human rights non-governmental organisations, was abducted in September 2008 in a store by a group of five men in civilian clothes. The men, who were carrying firearms, grabbed him and his bag, handcuffed him and put him inside a van, telling witnesses that they were policemen and no one should interfere because the man was being arrested for illegal drugs. One of the armed men was heard telling the driver of the van that they were going to the police headquarters. A few months before his abduction, Mr. Balao reported to his sister that he was being subjected to surveillance by vehicles tailing him and parking outside his residence. He also claimed to have received calls and messages informing him that he was under surveillance by the police and the military. After the disappearance, the police conducted an inspection at the place of abduction, interviewed witnesses and individuals suspected to be implicated in the abduction, and organised a Task Force to find Mr. Balao, but did not obtain any result. Despite his family's efforts, Mr. Balao's whereabouts were still unknown at the time of the proceedings.

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