PESTAO VS.

THE PHILIPPINES (The case before the UN Human Rights Committee against the Philippine Government
for violation of the International Covenant on Civil and Political Rights)

We received with joy last weeks news that the Office of the Ombudsman finally filed murder charges against 10 Navy officers in
connection with the killing of Navy Ensign Phillip Pestao in 1995.

In January 11, 2012, the new Ombudsman (former Supreme Court justice) Conchita Carpio-Morales filed murder charges
against 10 officials and officers of the Philippine Navy in connection with the death of [Phillip] Pestao. Morales [reversed] the
earlier dismissal of [her predecessor] saying there is sufficient evidence to file charges against Captain Ricardo Ordoez, Cdr.
Reynaldo Lopez, HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito
Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.[1]

In honor of Phillip Pestaos courage and his parents determination, we revisit the findings by the UN Human Rights Committee
(UNHRC) in 2010 upon a complaint filed in April 24, 2007 by Phillips parents, Spouses Felipe and Evelyn Pestao, against the
Philippine government, in relation to their Phillips alleged murder on September 27, 1995. The complaint filed by Spouses
Pestao was for violation by the Philippines of their sons rights under article 6[2], article 2, paragraph 3[3], article 9, paragraph
1[4], and article 17, paragraph 1[5] of the International Covenant on Civil and Political Rights [ICCPR].

The facts as presented by Spouses Pestao before the UNHRC[6]

Phillip Pestao was an Officer of the Philippine Navy serving as cargo officer of the ship BRP Bacolod City during its Mindanao
voyage in September 1995. On or about 25 September 1995, the ships Commander permitted the loading of more than 14,000
board feet of logs onto the BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the loading
of such unauthorized cargoes.

On 26 September 1995, the Phillips parents received an anonymous phone call, warning them that their sons life was in danger.
On the same day, they collected their son from the Navy Station at Sangley Point, Cavite City, about 100 kilometers from Manila,
and took him to their house in Loyola Heights, Quezon City. That night, Phillip disclosed to his father that the BRP Bacolod City
ship was dirty, and that the illegal cargo included 20 sacks of shabu (formed from Methamphetamine), worth approximately 1
billion pesos in the black market. The father tried to dissuade his son from pursuing the case, as he was concerned that any
action taken by his son may jeopardize his own business, as the Philippine Navys biggest ship repair contractor. But Phillip was
determined to take the matter forward.

On 27 September 1995, at about 4:00 am, Phillip left the family home and proceeded to board the BRP Bacolod City. At about
11:00 am on the same day, his parents received a call from the Philippine Navy, asking them to proceed to the Navy
Headquarters in Manila, because their son Phillip had an accident.

When his parents reached the Navy Headquarters, they were prevented from entering their sons suite, where he lay
dead. Instead, they were immediately asked to sign an authorization for an autopsy to be conducted on their sons body, to
which they consented after having viewed their sons body. The Navy thereafter exhibited an alleged suicide weapon and an
alleged suicide note, in support of their position that Phillip had committed suicide.

Significantly, on 30 September 1995, Phillip was buried in the National Cemetery for military personnel and given full military
honours, despite a Navy policy stating that suicide victims should not benefit from such treatment.

After conducting their own investigations, the Criminal Investigation Division of the Philippine National Police and the National
Bureau of Investigation of the Department of Justice corroborated the Navys position, concluding that Phillip had committed
suicide.

Also notable is the fact that in the course of the same month, after conducting its own inquiry, and despite the official Navy and
police conclusions, Phillips insurance company paid the full amount of his coverage to his beneficiaries for his
death. Apparently, the insurance company believed Phillip did not commit suicide.

In October 1995, the radio operator of the BRP Bacolod City during its Mindanao voyage, and close friend of Phillip, drowned in
high seas under highly suspicious circumstances during an alleged mission where all his companions survived. The victims body
was never found.

In November 1995, another member of the Navy, who was perceived as Phillips ally, and who was also aboard the BRP
Bacolod City in September 1995, mysteriously disappeared after being ordered to report to the Navy Headquarters in Manila.
This person is still missing and is believed to be dead.

On 15 November 1995, two Senators filed a Senate Resolution, directing the appropriate Senate Committees to conduct an
inquiry into the circumstances surrounding Phillips death.

In December 1995, the State partys Navy Flag Officer in Command, a Vice-Admiral, invited Phillips parents to dinner, and
requested that they refrain from pursuing their sons case against the Navy. Two weeks later, the Navy Flag Officer in Command
sought to see Spouses Pestao again, and presented Mr. Pestao with his companys contract with the Navy, worth a hundred-
million pesos, together with an affidavit of waiver and desistance to pursue his suit against the Navy. The spouses decided that
they would not abandon their sons claim. One week after this information was relayed to the Navy Flag Officer in Command, the
four Navy ships being repaired by Mr. Pestaos company all mysteriously sank, and his companys offices in the Navy Station in
Sangley Point were ransacked and looted.

It is also reported that Mr. Pestaos nephew, the companys property custodian, was shot dead during the same period.

On 2 January 1996, Spouses Pestao received a leaked copy of an intelligence report of the Armed Forces, which stated that
the BRP Bacolod City carried 1 billion pesos worth of shabu in 20 sacks of rice during its September 1995 trip. The report also
indicated that this shipment had been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon
discovering the illegal cargo, Phillip had confronted his superior, and was killed afterwards, to prevent him from revealing the
criminal activities taking place on board the ship. This confidential report also identified the chief security officer of the Navy Flag
Officer in Command as the most likely perpetrator of the crime.

In January 1996, another member of the Philippine Navy mysteriously died in a military hospital, after a strange and quick
deterioration of his condition. This person was suspected of involvement in the shabu operation in the BRP Bacolod City, as
well as in the death of Phillip, and had engaged in discreet talks with Spouses Pestao before theirs sons death. He was
believed to be ready to reveal important information before he died. The death of this member of the Navy brings to four the
number of persons killed in connection with the September 1995 voyage of the BRP Bacolod City. The four killings remain
uninvestigated, and unaccounted for.

Spouses Pestao filed complaints against the Commanding Officer and certain crew members of the BRP Bacolod City: (1) in
September 1995 with the Philippine Navy; (2) in September 1995 with the Philippine National Police and the National Bureau of
Investigation of the Department of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in
January 1998 with the Philippine Senate (Committees on Justice-Human Rights and Defense-National Security); (4) in March
2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a new Ombudsman (Simeon Marcelo), who was replaced
thereafter. No action was taken on the case by the new Ombudsman, Merceditas Gutierrez, since she took office in December
2005.

After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found
merit in the spouses petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in
September 1995, and from eight senior and junior officers and enlisted personnel to submit counter-affidavits as respondents,
within ten days. However, only one week after reopening the spouses case, the Ombudsman stepped down, and was
replaced. Since then, the case was left uninvestigated in the Office of the Ombudsman for military affairs.

On 25 January 1998, after eight Committee hearings, a visual inspection of Phillips stateroom in the ship, and relying, inter alia,
on expert evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestao case, which contained
the following findings: (i) Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place
in the vessel different from the one where his body was found; (iii) after his death, his body was moved and laid on the bed
where it was found; (iv) he must have been shot on board the BRP Bacolod City before the vessel reached the Navy
Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it appear that Phillip killed himself inside his
stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have accomplished it by himself.
The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the circumstances
surrounding Phillips murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the
deliberate attempt to portray a suicide.

On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without
prejudice, concluding in its evaluation report that the conduct of further investigation in order to find out the identity of the
perpetrator and his accomplices, if any, will only be a waste of time, considering that the physical evidence has already been
tampered with, not to mention the lapse of time.

UNHRCs consideration of the merits of the case

Let us tell you now how the UNHRC passed upon the merits of the case.

Violation of Article 6 of the ICCPR

As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated referring to the ICCPR as the
Covenant - that it:

recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have
a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not
only by its agents, but also by private persons or entities. The Committee also refers to its jurisprudence, according to which both
a criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those
protected by article 6. A violation of the Covenant may therefore arise as a result of a State partys failure to take appropriate
measures to punish, investigate or redress such a violation.

7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October
1995 that the victim had committed suicide, it now appears undisputed that the death of [Phillip Pestao] was a violent one,
resulting from a homicide. The [Philippine Authorities] submissions of 18 January and 8 May 2008, contending that [Spouses
Pestao]s case was an ordinary criminal case, at least concede this fact
The UNHRC took note of the following:[7]

1. conclusions of the substantial Senate report of 25 January 1998, which established that the victim
was shot on board the BRP Bacolod City on 27 September 1995, that there had been a deliberate attempt to
make it appear that [he] killed himself, and which recommended that an independent investigation be
conducted.
2. that an administrative and criminal action filed by [Spouses Pestao] is currently pending against
members of the [Philippine]s Navy, i.e. of an organ of the [state].
3. [Spouses Pestao]s assertions that two other members of the [Philippine] Navy who were close to
the victim, as well as another Navy Ensign who allegedly participated in the illicit boarding of drugs on the
BRP Bacolod City, and who had engaged in communications with [Spouses Pestao] about their sons
death, all died or disappeared in mysterious circumstances between October 1995 and January 1996.
4. [Spouses Pestao]s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to
lose their business with the Navy should they persist in their complaint. As they pursued their action,
[Spouses Pestao] reportedly lost their business, and their nephew, the companys property custodian, was
killed.
5. In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these
facts, the Committee gives due weight to the [Spouses Pestao]s contentions, which raise a strong
presumption of direct participation of the [Philippine Government] in the violation of their sons right to life.
The UNHRC then considered the following:[8]

1. that the killing of [Spouses Pestao]s son on board a ship of the [Philippine] Navy warranted a
speedy, independent investigation on the possible involvement of the Navy in the crime. To simply state
that there was no direct participation of the State party in the violation of the victims right to life falls short of
fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of
the victim, [Spouses Pestao] are still ignorant of the circumstances surrounding their sons death, and the
[Philippine] authorities have yet to initiate an independent investigation. In its submission of 8 May 2008, the
[Philippine Authorities] referred to an Order of 10 August 2007 of the Office of the Ombudsman, which
deemed it necessary to conduct further proceedings in the case. The Committee is not aware, however, of
any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses
Pestao] in October 2005. Since that date, no suspect was prosecuted, or tried, let alone convicted, and
[Spouses Pestao] were not compensated for the tragic loss of their son.
2. that the death of [Phillip Pestao] is directly attributable to the [Philippine Authorities]. When a
person dies in circumstances that might involve a violation of the right to life, the State party is bound to
conduct an investigation and ensure that there is no impunity. The [Philippine Authorities] must accordingly
be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3, to
properly investigate the death of [Phillip Pestao], prosecute the perpetrators, and ensure redress.
Violation of Article 2, paragraph 3(a) of the ICCPR

The UNHRC states that [U]nder article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide
[Spouses Pestao] with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the
circumstances of their sons death, prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an
obligation to prevent similar violations in the future.[9]

In ending, the UNHRC relayed its wish to receive from the [Philippines], within 180 days, information about the measures taken
to give effect to the Committee's Views.[10]

We are unaware if the UNHRCs wish was granted.

Violation of Article 9, paragraph 1 of the ICCPR

In claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that [Spouses Pestao] claim that they received
an anonymous call, informing them that their sons life was in danger, the day before he was found dead. However, there is no
evidence that [Spouses Pestao] reported these threats against their son to [Philippine] authorities, and if so, that the [Philippine
Authorities] failed to take appropriate action for this protection. Nor is there any conclusive evidence that the [Philippine
Authorities were] involved in threatening [Phillip Pestao]. In the absence of any further arguments put forward by [Spouses
Pestao] on this issue, the Committee [considered] that these claims are not sufficiently substantiated for the purposes of
admissibility and [therefore] inadmissible ...[11]

Violation of Article 17, paragraph 1 of the ICCPR

The UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the Covenant since [Spouses Pestao]
claim that the [Philippine Authorities] attempt to make it appear that [Phillip Pestao] committed suicide, is to be construed as
an unlawful attack against his honour. [The Committee considered] that this claim [was not] sufficiently substantiated for the
purposes of admissibility, and is inadmissible [12]
It is ironic and deeply sad that an international body had to deliberate upon the merits of what is clearly a local criminal affair.
Justice delayed is justice denied they say. Nevertheless, the filing of the cases, while long overdue, is still a welcome
development. We can only hope that the Philippine Government now stops its stonewalling, cleans its ranks, and help in any
ones sincere pursuit of justice. A much cleaner government would have prevented the early and unjustified death of Phillip
Pestao. A more just government would now support Felipe and Evelyn Pestao any way they can and prevent the grief of
families like theirs in the future.

Sahin vs. Turkey

Citation. Eur. Ct. of Human Rights, App. No. 44774/98, 44 Eur. H.R. Rep. 99 (2005)

Brief Fact Summary. A Turkish Muslim by the name Sahin (P) alleged that the Republic of Turkey (D) violated her rights and
freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms by banning the wearing of the
Islamic headscarf in institutions of higher education.

Synopsis of Rule of Law. Students rights and freedom under the Convention for the Protection of Human Rights and
Fundamental Freedoms are not violated when a secular country places a ban on wearing religious clothing in institutions of
higher education.

Facts. Sahin (P) had a traditional background of family practicing Muslims and considered it her religious duty to wear the
Islamic headscarf. When she was in her 5th year at the faculty of medicine of the University of Istanbul in 1998, the Vice-
Chancellor of the University issued a circular which stipulated that students with beards and wearing the Islamic headscarf would
be refused admission to lectures, courses and tutorials. Sahin (P) was denied access to a written exam and the University
authorities refused to enroll her in a course and to admit her to various lectures and other written exams because of the Islamic
headscarf she was putting on. She later left the University to further her studies in Vienna and had lived in Vienna since then.
Before leaving Istanbul, Sahin (P) filed an application against the Republic of Turkey (P) with the European Commission of
Human Rights and Fundamental Freedoms alleging that her rights and freedom under the Convention had been violated. A
judgment was rendered by the European Court after it heard the case.

Issue. Are students rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms
violated when a secular country places a ban on the wearing of religious clothing in institutions of higher learning?

Held. No. Students rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms
are not violated when a secular country places a ban on wearing religious clothing in institutions of higher education.
Constitutionally, Turkey (D) is a secular state founded on the principles of equality without regard to distinctions based on sex,
religion or denomination. In 1989, Turkeys (D) Constitutional Court decided that granting legal recognition to a religious symbol
such as the Islamic headscarf was not compatible with the principle that the state education must be neutral and might generate
conflicts between students of different religions. The Vice Chancellor explained the banning of the headscarf at the University
School of Medicine in a memorandum which was circulated that the ban was not intended to infringe on students freedom of
conscience or religion, but to comply with the laws and regulations in force and that such compliance would be sensitive to
patients rights. Hence, the ban did not prohibit Muslim students from manifesting their religion in accordance with habitual forms
of Muslim observance and it was not directed only at Muslim attire. So the view of the Court should not be interchanged for that
of the University who are better placed to evaluate local needs. The right to behave in a manner governed by a religion belief is
not guaranteed by Article 9 and it also does not confer on people who do so the right to disregard rules that have proved to be
justified. By giving due regard to Turkeys (D) margin of appreciation, the interference here was justified in principle and
proportionate to aim pursued. Hence, Article 9 was not contravened.

Dissent. (Tulkens, J.) Religious freedom is necessary for the protection of a democratic society and not secularism alone.
Therefore, the Court should have established that the ban on wearing the Islamic headscarf was necessary to secure
compliance with secularism and met a pressing social need. But a cogent example supporting the Courts view is not provided.
Hence, the ban was not based on relevant or sufficient reasons and therefore cannot be deemed interference that is necessary
in a democratic society within Article 9 S 2s meaning. Sahin (P) right to freedom of religion under the Convention has therefore
been breached.

Discussion. Margin of appreciation is the word-for-word English translation of the French phrase marge dappreciation, a
concept used in a number of courts in Europe, among them the Strasbourg human rights court and the European Union courts in
Luxembourg. The Court is covered under the margin of appreciation to account for the fact that the Convention will be interpreted
differently in different signatory states, so that judges are obliged to take into account the cultural, historic and philosophical
contexts of the particular nation in question.

Obergefell v.Hodges

Facts of the case

Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the
constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in
jurisdictions that provided for such marriages. The plaintiffs in each case argued that the states' statutes violated the Equal
Protection Clause and Due Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under
the Civil Rights Act. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit
reversed and held that the states' bans on same-sex marriage and refusal to recognize marriages performed in other states did
not violate the couples' Fourteenth Amendment rights to equal protection and due process.

Question

(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was
legally licensed and performed in another state?

CONCLUSION:

Yes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process Clause of
the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies
to same-sex couples in the same manner as it does to opposite-sex couples. Judicial precedent has held that the right to marry
is a fundamental liberty because it is inherent to the concept of individual autonomy, it protects the most intimate association
between two people, it safeguards children and families by according legal recognition to building a home and raising children,
and it has historically been recognized as the keystone of social order. Because there are no differences between a same-sex
union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry
violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also
guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection
under the law. Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same
interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the
fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the rights of religious
organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same
terms as those for opposite-sex couples.

Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and fair
policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to
recognize or license such unions. Instead, this issue should be decided by individual state legislatures based on the will of their
electorates. The Constitution and judicial precedent clearly protect a right to marry and require states to apply laws regarding
marriage equally, but the Court cannot overstep its bounds and engage in judicial policymaking. The precedents regarding the
right to marry only strike down unconstitutional limitations on marriage as it has been traditionally defined and government
intrusions, and therefore there is no precedential support for making a state alter its definition of marriage. Chief Justice Roberts
also argued that the majority opinion relied on an overly expansive reading of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment without engaging with the judicial analysis traditionally applied to such claims and while disregarding
the proper role of the courts in the democratic process. Justice Antonin Scalia and Justice Clarence Thomas joined in the
dissent. In his separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Courts authority
both by exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves for the
states. Justice Scalia argued that the question of whether same-sex marriage should be recognized is one for the state
legislatures, and that for the issue to be decided by unelected judges goes against one of the most basic precepts of the
Constitution: that political change should occur through the votes of elected representatives. In taking on this policymaking role,
the majority opinion departed from established Fourteenth Amendment jurisprudence to create a right where none exists in the
Constitution. Justice Thomas joined in the dissent. Justice Thomas also wrote a separate dissent in which he argued that the
majority opinion stretched the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing
so distorted the democratic process by taking power from the legislature and putting it in the hands of the judiciary. Additionally,
the legislative history of the Due Process Clause in both the Fifth and Fourteenth Amendments indicates that they were meant to
protect people from physical restraint and from government intervention, but they do not grant them rights to government
entitlements. Justice Thomas also argued that the majority opinion impermissibly infringed on religious freedom by legislating
from the bench rather than allowing the state legislature to determine how best to address the competing rights and interests at
stake. Justice Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Constitution does
not address the right of same-sex couples to marry, and therefore the issue is reserved to the states to decide whether to depart
from the traditional definition of marriage. By allowing a majority of the Court to create a new right, the majority opinion
dangerously strayed from the democratic process and greatly expanded the power of the judiciary beyond what the Constitution
allows. Justice Scalia and Justice Thomas joined in the dissent.