[OPINION] Where are the CHR’s findings in its red-tagging inquiry?

On July 29, 2024, the Commission on Human Rights (CHR) of the Philippines launched a public inquiry on red-tagging. It was framed as “a fact-finding undertaking in aid of investigation” to shed light on practices which threatened human rights defenders and wider civil society.

The CHR leadership announced the following year that it had concluded the public inquiry. CHR Chairperson Richard Palpal-Latoc described the entire process as “dialogic and not adversarial,” focusing on “information-sharing” and “public accountability” among experts, key officials, grassroots communities, and other stakeholders.

As the full extent of the findings or recommendations of the CHR remains unavailable for public study, red-tagging is reinforced in the mainstream through institutional practices and political rhetoric. We now see sharper articulations of the kind of vilification it carries in everyday exchanges.

In the latest wave of military operations resulting to the killing of 19 individuals in Toboso, Negros Occidental, even publicly expressing grief for the dead could earn one the label “communist sympathizer.” 

Human rights fact-finding as gap-filling

The consequences of red-tagging or communist-tagging have been flagged by international bodies, experts, and even the Supreme Court as inimical to the enjoyment of human rights and freedoms. In my own scholarship on red-tagging and its implications on the enforcement of international humanitarian law, I emphasized the utility of human rights law as presenting possible remedies for harms arising from red-tagging.

From this analysis, red-tagging could constitute a violation of IHL if it breaches the principle of distinction, resulting to attacks on civilians not otherwise directly participating in hostilities. IHL and human rights law are functionally distinct legal regimes and there are different ways in which breaches of IHL can trigger legal consequences.

Among these legal options is the criminal repression of IHL violations. Yet in a system where criminal prosecutions can lead to years of protracted litigation, human rights-informed frameworks can fill such policy and practice gaps in a relatively quicker fashion.

Leading to the formal establishment of the CHR’s public inquiry, I had the opportunity to present this legal theory as an academic in a red-tagging forum hosted by the Commission sometime in 2023. The CHR’s openness to legal academic studies is an essential feature of its work. As a point of reference, its National Inquiry on Climate Change culled from the views of different stakeholders has generated international interest and even influence as a model for climate accountability.

Any recommendation from the public inquiry on red-tagging has the potential to inform public debate and, more importantly, help remind everyone of the limits of what duty-bearers such as the government’s security forces can do in situations where rights might be violated.

Yet as of writing, apart from subsequent statements on later red-tagging incidents and press releases from its website, the public has yet to read the full extent of the findings from the CHR’s public inquiry on red-tagging.

Even an advisory from the CHR could help facilitate action. Under its own rules, the CHR can formulate advisories upon any report of human rights violations and direct such advisory to the government itself. In our constitutional system, the CHR was designed as an institution to be forward-looking as much as it was put in place to help remind us of horrors of rights violations from the past.

During the deadliest days of the drug war, the CHR withstood the threat of defunding and worsening public reception of human rights. In these days of more agile yet more lethal forms of surveillance and use of force, there is greater necessity for the state to be reminded of its human rights obligations and the limits of its own power. 

Long-term frameworks alongside quick response investigations

While the CHR possesses no prosecutorial powers nor is it a quasi-judicial body, the Supreme Court has made clear that the CHR can certainly endorse its findings and recommendations for appropriate action of relevant government institutions.

In between the time that the CHR concluded its public inquiry and recent episodes of dangerous red-tagging, the foundations for concrete policy frameworks could have been laid down from the findings of the proceedings it conducted from 2024 to 2025. As forms of violence — both physical and symbolic — intensify in such public displays, expert-informed findings could help put in place more long-term mechanisms for protection and prevention.

Any institution designed to uphold human rights will always face difficult odds. By their nature, human rights violations will emanate from a place of power and control of resources and even narratives. In the aftermath of the violence in Toboso, the CHR declared that it instituted an independent investigation into compliance with IHL during operations and general human rights standard as they may apply.

If military operations from here on out retain the same complexion of deadly violence, a more wide-scale, fundamental and long-term framework of action must be put in place alongside ad hoc investigations. 

And in the Philippines where human rights defenders have increasingly been exposed to danger by virtue of their work, one inevitable recourse will always be to turn to the CHR — the national human rights institution of the country — to respond in impactful, transformative ways. – Rappler.com

Ross Tugade is a doctoral researcher and legal scholar on international law, accredited in the List of Assistants to Counsel of the International Criminal Court.