Harry Roque’s Blog

With the 9th Division of the Court of Appeals granting Navy Lt. Sr. Grade Nancy Gadian a Protection Order, the latter has without a doubt, been vindicated. Obviously, we, – Lt SG Mary Nancy Gadian and her lawyers and supporters – are also elated and grateful to both the Supreme Court for granting her a Writ of Amparo and to the Court of Appeals for the Writ of Protection order extended to her. In granting both the writ of Amparo and the Protection order in less than one month in record time, our courts have also upheld the efficacy of the writ of amparo as a means to protect the most important human right of them all: the right to life.

The CA decision is also significant since it is the first time that the ruling of the Supreme Court in the case of Secretary of Defense vs. Manalo et al., was literally applied. Until the case of the Manalo brothers, it was incumbent upon the Petitioners in Amparo cases to prove – and here previous CA decisions apparently required proof beyond reasonable doubt when the rules require only substantial evidence – the actual threat to ones life, liberty and security, as well as the authorship of these threats. But applying now the decision in the case of the Manalo brothers, the CA applied instead the correct standard, that is freedom from fear from a threat to one’s life, liberty and security. While the CA did not Order the respondents to cease and desist from making threats which the CA said was not proved by Petitioners, still the Court, as Lt. SG Gadian argued, ordered the AFP leadership to investigate these threats. This part of the decision implements our Treaty obligation relative to the right to life under the International Covenant on Civil and Political Rights (ICCPR) which includes both the duty to protect and promote the right to life, along with a duty to investigate , punish and prosecute those who may even wish to violate the right to life.

While Gadian has good reasons to be truly elated with the CA decision, we at the Center for International Law (CENTERLAW) who acted as her lawyers for the Petitioner, her sister Nedia Diamante-Gadian, still have reasons to be very concerned. This is because while the court gave credence to Gadian’s complaint that the threat on her was emanating from yet unidentified persons in the military, the CA decision nonetheless ordered the Secretary of National Defense to protect her. Even prior to the CA decision, the Secretary of the DND has publicly offered to protect Lt. SG Gadian. This, however, we rejected for at least two reasons: one, the fact that the Secretary of the DND has shown himself biased in favor of the military hierarchy that he still heads. In fact, in a statement dated May 23, 2009 which the Secretary caused to be distributed to the media, he cautioned the CA in granting Gadian’s petition : “We are hoping the court will be careful in reviewing the petition and the circumstances behind it as well as granting such relief as this could affect the chain of command and the implementation of the disciplinary system in the military.” This is a clear indication that the Secretary, now tasked with protecting Gadian, is more concerned with the military chain of command than Lt. SG Gadian’s right to life. Second, the DND, albeit in civilian in character, could only extend protection to Lt. SG Gadian through its military personnel. This was unacceptable and continues to be so because of the obvious security risk posed by military personnel protecting a military whistleblower whom the CA found is the subject of threat emanating also from the military institution.

This is why it is now imperative for the Supreme Court to proceed forthwith to accredit private providers of safe havens to implement protective orders issued by our courts in Amparo cases. Unless this havens are accredited as soon as possible, we will have further repeats of what appears to be a ludicrous scenario: protection to be provided by the same institution responsible for the threats to begin with.

It is hence our intention to partially appeal the CA decision on the matter of who should provide protection to Lt SG Gadian. We will ask the Supreme Court to amend the appellate Court’s Order to allow the Association of Major Religious Superiors to continue to provide protection and sanctuary to Lt. SG Gadian, but with a further plea that the Head of the Human Rights Office of the Philippine National Police should provide her and the AMRSP with 24 hour security and protection.