The unjust detention of Leila de Lima

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posted February 23, 2019 at 01:00 am by Tony La Viña

“Widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity.”

In the last column, I observed how the rule of law diminished through the actions of the Duterte government in the case of Senator Leila de Lima. No less than the United Nations Working Group on Arbitrary Detention has concluded that her arrest and detention are illegal.

At the outset, the Working Group said that it reaffirms the obligation of the Government to respect, protect and fulfill the right to liberty of person and that any national law allowing deprivation of liberty should be made in conformity with the Universal Declaration of Human Rights and other applicable international or regional instruments. As such, according to the Working Group, even if the detention is in conformity with national legislation, regulations and practices, the Working Group is entitled and obliged to assess the judicial proceedings and the law itself to determine whether such detention is also consistent with the relevant rules and standards of international human rights law.

In its opinion, the Working Group stated that despite the fact that the Philippine courts denied Ms. De Lima bail in accordance with its national laws and procedure, this does not prevent the detention from being arbitrary. According to the Working Group, pretrial detention without an individualized determination of the risk of flight, interference with the evidence or the recurrence of the crime, as well as consideration of less intrusive alternatives, such as bail, electronic bracelets or other conditions in accordance with the principle of necessity and proportionality, is devoid of legal basis.” Ms. De Lima’s pretrial detention shows the importance of this Ms. De Lima’s pretrial detention, is in violation of the Universal Declaration of Human Rights and of the Covenant, lacks a legal basis and falls under Category I.

As to the charges under Category 11, the Working Group is of the opinion that Ms. De Lima’s deprivation of liberty is a consequence of her personal conviction and public statements regarding extrajudicial killings in the Philippines.  According to the Working Group, De Lima’s statements on the widespread and systematic campaign of extrajudicial killings in the context of the war on drugs have triggered measures of reprisals against her that included a criminal investigation conducted by the Department of Justice and her detention. Moreover, she has been subjected to detention as a result of the exercise of her right to take part in government and the conduct of public affairs under article 21 of the Universal Declaration and article 25 of the Covenant. The Working Group expressed its grave concerns about the unfavorable remarks made publicly by the President and his allies against her after she expressed her intention to investigate the extrajudicial killings under the so-called war on drugs. By way of conclusion, the Working Group said that Ms. De Lima’s deprivation of liberty is arbitrary under category II, as it resulted from her exercise of the rights and freedoms guaranteed the Universal Declaration of Human Rights.

The Opinion stated that the Secretary of Justice prejudged Ms. De Lima’s guilt in a trial by publicity during the congressional hearing on the Bilibid drug trade before the Department of Justice, which must decide independently and impartially when acting as a preliminary investigator.

The Working Group also expressed its concerns over the attacks on the independence of the judiciary. It concluded that the violations of Ms. De Lima’s rights to a fair trial are of such gravity as to render her deprivation of liberty arbitrary, falling within Category III.

Category IV is inapplicable as it relates to asylum seekers, immigrants or refugees subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.

As to whether Ms. De Lima’s deprivation of liberty constitutes illegal discrimination under international law for the purpose of category V, the Working Group concluded that this constitutes a violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2, 3 and 26 of the Covenant24 on the grounds of discrimination based on political or other opinion, as well as her status as a human rights defender and as a woman. Her deprivation of liberty therefore falls under category V. In this respect, the Working Group pointed out that Ms. De Lima’s political views and convictions are clearly at the center of the case and that the authorities have displayed an attitude towards her that can only be characterized as targeted and discriminatory. Indeed, she has been the target of partisan persecution and there is no explanation for this other than her exercise of the right to express such views and convictions as a human rights defender.

Finally, the Opinion observed that Ms. De Lima’s case is not an isolated incident as thousands have been killed for reasons related to their alleged involvement in illegal drug use or dealing” and that “many of the reported incidents involved extrajudicial killings in the course of police anti-drug operations. It observed that widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity.

Office of Senator Leila de Lima
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