Interim reports should include an assessment of the witness protection mechanisms. If witnesses whose cases were detailed in the interim report are subsequently subject to threats, intimidation or violence, action must be taken immediately against perpetrators and the security of the witness ensured.
Protection measures should not be restricted to concealing the identities of witnesses who request it. They may include seeking restraining orders against anyone who poses a threat to the witness or to their family, organizing police protection, safeguarding the whereabouts of the witness and their family from disclosure and providing them with medical and psychological treatment and support. In some cases, such protection measures will need to be long-term and can require relocation and new identities for the witness and their families.
The Melo Commission should have the power to require the relevant authorities to suspend from duty officials and others allegedly involved in cases of extrajudicial executions under investigation, or to transfer them to other duties where they would have no power over victims or witnesses, without prejudice pending completion of the investigations, if there is reason to believe that they may interfere with witnesses or otherwise interfere with the investigation.
iii. A fair procedure
Amnesty International believes that all witnesses, alleged perpetrators and other individuals involved should be guaranteed the following rights, among others, at all stages of the procedure before the Commission:
* The right not to be discriminated against;
* The right to a fair and public hearing by a competent, independent and impartial body;
* The right not to be compelled to testify against themselves or to confess guilt;
* The right not to be subjected to any form of coercion, duress or threat, to torture or to any other cruel, inhuman or degrading treatment or punishment;
* The right to have the free assistance of an interpreter if they cannot understand or speak the language used;
* The right to be informed promptly and in detail of any allegations made against them;
* The right to defend themselves and the right to have legal assistance, where appropriate;
* The right to be presumed innocent until proved guilty according to law;
* If adversely affected by the Commission’s decision, the right to seek judicial review;
* In the case of juveniles below 18 years of age, the procedure should take account of their age and the desirability of promoting their rehabilitation.
iv. Collection of evidence and statement-taking
In collecting information, the Melo Commission should seek the cooperation of the widest possible range of sectors of society, paying special attention to information and testimonies provided by the families of victims, national and international human rights organizations and previous research projects.
In the Philippines a wide range of groups, including human rights, legal, political and Church and community-based organizations, have conducted fact-finding missions and compiled documentation into patterns of political killings over recent years. Such groups should be actively encouraged to submit their reports and to participate in the work of the Commission.
In addition, Amnesty International urges the Government, on the advice of the Commission, to seriously consider an expansion of the Commission’s membership to include other independent and impartial persons from human rights or other groups with experience of documenting reports of political killings.
The Commission should pursue all available sources of information, including: statements from surviving victims, witnesses and alleged perpetrators; material evidence from sources such as government records, medical records or reports, and police investigation files; court files; media reports; and information from other NGOs, UN human rights monitoring bodies and mechanisms, families of victims, and lawyers. The experience of human rights organizations over the years has resulted in material relevant to the cases of which the Commission should avail.
As a first step in gathering evidence, the Commission should invite people to testify or submit written statements. All interested parties should have an opportunity to submit evidence. Evidence can be submitted to the inquiry in writing, at least initially. The Commission should consider written submissions from, or arrange special interviews with, witnesses who are unable to attend because they are abroad, because they are afraid of retaliations, or for other valid reasons. It should be flexible about the manner of questioning witnesses and adapt its method to the circumstances of the case and the individual interviewees, so as to gather an optimal amount of evidence.
Commissions of inquiry are not bound by such strict rules of evidence as a court, and can consider reliable evidence of any kind, including, for example, hearsay (secondary) evidence. All information received, especially if provided by any individuals or groups which might attempt to use the Commission as an instrument for their own purposes, should be evaluated with caution. The Commission will need to assess all information and evidence it receives to determine its relevance, veracity, reliability and probative value. The reliability of hearsay evidence, in particular, must be considered carefully and must normally be corroborated before it can be accepted it as fact. On no account may the Commission admit statements obtained by torture or other cruel, inhuman or degrading treatment or punishment, unless as evidence that such torture or ill-treatment has been inflicted. Legal counsel should assist the Commission by bringing relevant evidence to its attention and ensuring that evidence produced by the inquiry is admissible in later criminal proceedings.
v. Public information and education campaign
A comprehensive outreach policy is essential to the Commission’s impact.
* The Commission should establish contact with representatives of non-governmental organizations, other relevant non-state institutions and the media, to publicize its work and obtain relevant information. It should also seek to access information and advice from appropriate international human rights bodies, including relevant UN Special Procedures such as the Special Rapporteur on Extrajudicial Executions.
* The matters that the Commission will look into should be notified to the public by all appropriate media. This notice should include an invitation to submit information and guidance for doing so.
Special attention should be paid to notifying victims of the violations investigated, or those who otherwise may have an interest. Live broadcasting of the hearings in the media should be considered, subject to evaluations regarding the protection of victims, witnesses and alleged perpetrators (outlined above).
D. Reporting, reparation and prosecution
i. Reporting, recommendations and dissemination
The final report is the most visible outcome of the work of a commission of inquiry. The report must provide details of all aspects of the Melo Commission’s work, including investigations, hearings, findings and recommendations for prosecution. The final report should set out:
* the Commission’s mandate and terms of reference;
* its procedures and methods for evaluating evidence, as well as the law upon which it relied;
* the background to the investigation, including relevant social, political and economic conditions and information on whether the Commission received the necessary cooperation by the government and other public institutions;
* its findings of fact and a list of documents and other evidence upon which such findings are based;
* its conclusions based upon applicable law and findings of fact, including a critical analysis of institutional structures, policies and practices, and other factors which allowed the extrajudicial executions and other political killings to take place;
* a list of victims of extrajudicial executions and other political killings; and
* its recommendations.
Amnesty International recommends that the Melo Commission’s final report be made public and widely circulated without undue delay.