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Republiha ng i'i li1.'int s
Koatr!*yr3(, i'?g fi.arorprxtai.ftS tra*lta@ rirg Filipiraas
(Cantmissioiton Hutran Righx aftha Phihpf inas)

VIZCAYA- [CHR-H-zoo8-ooSs

CHR(IV) No.Aaofl-oo4
The ultimate goal of economicdevelopmentis to raise the quality of
life of cll people.To this end, the Statepromotesthe firll and efficient useof
its human and natural resourcesby encouragingprivate entities to invest in
key industries and business enterprises. However, when private entities
violate the fundamental rights and entitlements of the people in tle name
of economicdevelopment,they not only losetleir moral legitimacy * they
also defeatthe very purposefor which they were given authority to conduct
business. The present case is a classic aad lamentable example of how
economicaggresslondenigratesthe most basicof humaa rights.

This caseis about the alarming human rights situation in Barangay

Didipio, IGsibu, Nueva Vizcaya.At the center of the controversy are the
6iping operations of Oceana Gold Philippines, Inc. (OGPI), a foreign-
owned corporation, with which the national governmentof the Philippines
has entered into a Financial and TechnicalAssistanceAgleement (FTAA).
Severalresidentsof Didipio objectto the large-scalemining in their areaon
accountofperceived adverseeconomicand environmentalimpact that such
activity would cause to their community. Majority of the residents in r'\,rt
Didipio are indigenous peoples although they are originally from other
places and tlus cannot directly clairn ancestral domain over Didipio.
Reports and complaints reached the Commission on Human Rights
(Commissionfor brevity) aflegingwidespreadand systernaticviolations of
human rights committed by OGPI and the security sectoragainstresidents '.: .]
opposed to large-scalemining. The tense situatjon in tle area has not
abatedand seemsto be only getting worse.

In furtherance of its commitment to protect and promote human

rights, and pursuart to its mandateto investigateviolations thereof as well
I*!rapatang Pr!otao:Likas SaAtln, ?ungkulin Natin
Cantur,,lt"althArenue,(l.P Ca jplex,Dilnnau ll0l,
as mouitor compliancetlerewith, the Commissiontook cognizance of this
case,After a thorough review of all the information and documents
gathered,the Commissionfinds that, indeed,humanrightsviolationswere
committedagainstthe indigenouspeoplesinhabitingDidipio.


On 24 June 1994,PresidentFidel V. Ramosenteredinto a FTAAwith

Arimco Mining Corporation (AMC) for the exploration, developmentand
utilization of minerals located in about g7,ooo hectaresof land situated in
the provinces of Nueva \rizcaya and Quirino. Included in this area is
BarangayDidipio in Kasibu,NuevaVizcaya.

On 03 March 1995,PresidentRamossignedinto law RepublicAct No.

7942 otherwise known as the Philippine Mining Act of 1995.Someof the
provisions of saidlaw which are most relevantto this caseare the following:

Sec.75 EasementRights. When mining areasare so situated that

for purposesof more convenientminiug operationsit is necessaty
to buil4 construct or install on the mining areasor lands owned,
occupiedor leasedby other persons,such inftastmcture as roads,
railroads, mills, waste dump sites, tailings ponds, warehouses,
staging or storage areas and port facilities, tramways, mnwats,
airports, electric transmission,teiephoneor ielegraph lines, oalrs
and &eir normal flood and catchmentareas,sites for water wells,
ditches, canals, uew river beds, pipelines, flumes, cuts, shaffs,
tunhels, or mills, the contractor, upon pa]'ment of lrst
compensation,shall be entitled to enter and occupy said mining
areasor lands.

Sec.76 Eritry into Private Iands and ConcessionAreas.Subiectto

prior notification, holders of mining rights shall not be prwented
from entry into private lands and concessionareas by surface
owDers, occupants, or concessionaireswben conducting mining
operations therein: Provided That any damage done to th6
properly of the surface owrcr, occupan! or concessionaircas a
consequenceof such operationsshall be properly compensatedas {,
may be provided for in the implementing rules and regulations:
Provided f,uther, That to guamnteesuchcompensation,the penou ,F-
authorizedto conduct mining operation shall, pdor thereto, post a
bond with the regionaldirector basedon the type of properties,the L'5
prer,ailing prices in and around the area-wbeG tie minins AJ
operationsare to be conducte4 with suety or suretiessatisfactory
to the r€gionaldirector. &
On $ August 1995,the Departmentof Environmentand Natural \q
Resources(DENR)issuedthe ImplementingRulesand Regulations(IRR)
of R..d No. 7942throughDepartmentAdministrativeOrder(DAO)No. zg,
seriesof r99S. This was supersededby DAO No. 96-4o, seriesof 1996.
Pertinentto this casearetle followingprovisionsof saidIRR:
Section106.Voluntary Agre€ment f,
A voluntary agrcement between a surface owner, occupant or
concessionairethereof permitting holdeN of mining dghts to enter
' into and use its land for mining purposesshall be registeredwith
the concernedRegionalOffrce.The said agreementshall be binding
upon tfre parties,their heirs,successors-in-interest
alld assigDs.

Section1o7.Compensationofthe SurfaceOwnerand Occupant

Any damagedoneto the property ofthe surfaceown€r,occupantor

concessionarre thereoi as a consequenceot the mrmng operauons
or as result of t]le construction or installation of the inftastructure
mentioned in Section 1o4 above shal be property ald justly
compensated.Suchcompensationshall be basedon the agreement
entered into betweenthe holder of mining rights and the surface
owner,occupantor concessionaire thereofor, whereappropriate,in
accordaneewith P.D.sp. In caseof disagreementor in the absence
of an agr€ement ttre matter shall be brought before the Panel of
Arbitxatomfor proper disposition.

In late 1995,AMC consolidatedwith Climax Mining.Limited to form a

singe company named Climax-Arimeo Mining Corporation (CAMC). In
December1996,CAMCtransferredall its rights to the FTAAto Australasian
Philippine Mining, Incorporateal(APMI), which transfer was approvetlby
the DENR nine yearsafter in December2oo4.

On rr Octoberzoo5, t}te DENR issuedan Order approvingtle Partial

Declaration of Mining Project Feasibility for tle Didipio Gold/Copper
Project. Saidproject is coveredby the FTAA held by APML In Decemberof
the same year, APMI launched a "Surface Rights Acquisition" (SRA)
Programto enter the lands within the Projectarea.

On 3o March 2006, the SupremeCourt issueda decisionon the case

of Didipio Earth Savers'Multi-Purpose Association (DESAMA), et cl vs.
Go rn et cl. upholding the constitutionality of the "taking" provisions of
Rd No. 7942 and its correspondingrules and regulations.The dispositive
portion of the decisionreads:
"WHEREFORX, the instant petition for prohibition and i-
rncndcmus is hereby DISMISSED.Section76 of RepublicAct No.
7942and Sectionloi of DAO 96-40; nepubiic ect N6. 7942and its
Implementing Rules and Regulationscontained in DAO 96-40 - Il),'
insofar as they relate to financial and technical assisrance L';
agreementsretbrredto in paragraph4 of S&tion z ofArticie xrt ot j;i
the Constitution are NOT UNCONSTTTUTIONAL.

O 1June2oo7APMI changedits nameto OGPI;
In June 2oo8, reports and complaintswere filed with the CHR
alleging that OGPI had illegally ard violently demolishedsome r87 houses
ordersof demolitionfrom the court,unaccompanied by tle Sheriff,without
paymentof just compensation,and witlout providingalternativeoptions
for relocationand resettlement.Theseclemolitionswerereportedto have
been attendedby unnecessaryviolenceand destruction:residentswho
resistedand triecl to savettreir homeshad beenbeaten,including their
neighbourswho helpedthem; houseshad beenbulldozedoff eliffs and set
on fire. It was further allegedthat OGPIfencedoff large sectionsof the
roadsand pathwayswhich communityresidentshaverelied upon for the
past 30 yearsto transportpmducefrom their farmsto the market,It was
also reported that OGPI has set up checkpointsaround the Barangay,
causingtlem difficulty in movingabou! resultingin the unjust restriction
of t}reir socialand economicactivities.Moreover,it was allegedthat the
PNP-Regional Mobile Groupservesas a "private securityforce" of OGPI,
with their officersbeingstationedinsidethe facilitiesof tle latter.

While the CHRwassilentlyinvestigatingand monitoringthe matter,

reportsaboutallegedharassments and incidentsof violenceagainstthose
who stronglyopposethe mining operationskept persisting,The situation
reacheda critical point on 02 Octoberzoog when,during an attemptto
demolishseveralhouses,more than one hundred membersof the PNP
allegedlyused tiuncheons,shields and tear gas to disperseprotesting
residentsfrom demolishingthe housesof their neighbors.Reportssaid,the
Mayorof Kasibuandthe BarangayChairpersonof Didipiowereincludedin
those who were violently dispersed. This incident prompted the
Commissionto give priority to the settlementof human rights issuesin

On o5 November2oo9, tle Commission,led by no less than

ChairpersonLeilaM. de Lima,togetherwith Commissioner JoseManuelS.
Mamauag,AttorneysRobertAlcantaraand GemmaParojinog,and other
officers from CHR Regionz Offrce,conductedan ocular inspectionof
Didipio to seefor themselves the couditionin the area.Accompanied by the
Mayor of Kasibu,NuevaVizcaya,and other local offtcials of Barangay
Didipio, the Commissiontook a three-hour drive from Solano.Nuela
Vizcayato the impactarea.Uponarrival to Didipio,the Commissionwasat
first refusedentry by securityofficerswho lookedlike soldiers.After the
securityofficersfinally got a go-signalfrom ttreir radio,the securityofhcers
allowedthe teamto pass.Membersof the teamheardthe securityofficers !i-
say,"mga toga-munisipryo lang yan " Whenthe teamidentifiedthemselves L
as officers of the Commissionon Human Rights, the security ofEcers
towardsthe teamandwen escortedthemto
the affectedareas.The team then went to inspectt]le entire impact area,
including the proposedsite of damsfor mining purposesfearedto cause
shortageof cleanandsafewaterfor domesticandirrigationpurposes.

Thenext day,the teamconveneda PubicDialoguewith the objective

of understandingthe controversyfrom all perspectives.Said public
Dialoguewas attendedby officersof OGPI,PNP officials,LGU officials.
of theNationalCommissionon Indigenous peoples(NCIp),

and NGO and communityleadersand members.During the Dialogue,
OGPIwas givenall opportunityto addressaneryallegationcastat them.
Likewise, the police was allowed to explain its participation in the
controversy, including the October oz dispersal. The Commission
requestedfrom tle participantsall pertinentdocumentsand remrclsthat
would havea bearingin the determinationof the human rights issuesin
Didipio.The stakeholderscompliedseveraldaysafter the PublicDialogue,
submittingvoluminousrecordsand documentsto supporttheir positions.
Muchof the documentscamefrom OGPIandthe NGOs.


Various issueshave muddled the controversyin Didipio. In fac!

numerouscriminal, civil and administrativecaseshavebeenfiled left and
right, all of whichhavefor their root the mining operationsin the area.In
accordancewith international norms, standards and principles, the
Commissionhasresolvedto addressthe followinghumanrightsissues:







V. WHETHER oR Nor OGPI vrorarED Tr{E fuGHT To WATER oF firE

reoeLnw Dutto; and
Theseissuesshallbe addressed
in sen'otr'm.



TheRightto Residence, Rightto Mequate Housingandprotectionof

PropertyRights are well recognizedin botl internationaland domestic
laws. Article $ (1) of the Universal Declarationof Human Rights (UDHR)
statesthat "everyonehas the right to fteedom of movementand residence
within the borders ofeach State."This declarationofthe Right to Residence
and Freedomof Movementis reiteratedin Article rz (r) of the International
Covenanton Civil and Political Rights (ICCPR)which provides: "Everyone
lawfully within the territory of a State shall, within that territory, have the
right to liberty of movementand freeclomto choosehis residence."

While many international documentsl recognize the Right to

Adequate Housing, Article rr (r) of the International Covenant on
Economic,Socialand Cultural Rights (ESCR)is consideredto be the most
relevantanil most comprehensiveprovision.r Saidprovision reatlsl
'The States Parties to present Covenant recognizethe right of
everyoneto an adequatestanilard of living for himself and his
family, including adequatefood, clothing ard housin& ard to the
continuous imprcvement of living conditions. The States Parties
will take appropriatestepsto ensurethe international co-operation
basedon free consent(emphasisadileil.) "

The Committee on Economic, Social and Cultural Rights (CESCR)

issued General Comment No. 4 on Mequate Housing and General
CommentNo. 7 on ForcedEvictions,elaboratingon tbe normative contents
of the Right to Adequate Housrng.According to the CESCR,the Right to
Adequate Housing should not be interpreted nilrrowly to mean having a
roof on one'shead, Rather,it should be seenas the right to live somewhere
in security,peaceand dignity, in conformity with the inherent dignity of.the
human person.3 It can be gleaned from the aforementioned General
Commentsthat the Right to AdequateHousing contains severalfreedoms
and entitlements. These freedoms include: protection against forced
evictions and the arbitrary destruction and demolition of one's home; t]te
right to be free from arbitrary interference with one's home, privacy and
family. On the other hand, tle entitlements include: security of tenure;
housing, land antl property restitution, equal and nondiscriminatory
accessto adequatehousing; and participation in housing-relateddecision-
making at the national and community levels.a
The right to property, on ttre other ha:rd, is well entrenchedin our d"
Constitution. Article III, Section r of the 1987 Constitution unequivocally {.'i-:
states that "[n]o person shall be deprived of his life, litr:rertyor propertg ,.j
without due processof law xxx" (emphasiscdded). Likewise, tht Civil
I A-sindicatedin CESCR
cenemlConm€ntNo. 4, Seearticle25 (l) ofrhe UnivenalDeclaralion

anicle5 (e) (iii) ofthe lntemalionalConventionontheEliminationofAll FontrsofRacialDiscrimilarionarticie14 ;l

.- <$
(2) of the Codventiodon the Eliminationof All Formsof DiscriminajionagainstWome&artiole22 (3) of th€
Convenliotr ondrcRightsoflhe Chil4 aticle l0 ofthe Deolahtionon SooialprcgressandDevelopmen! s€ctionIII
(8) offte Vadcouver DeclamtionotrHumanSettlehe !, 1976(ReLortofHabit* Unit6dNationsConfer€nce on
HumanSettlements (JnitedNdtionspublication,SalesNo. E.76.IV.?andconigendurn),
chap.D, article8 (t) ofthe
Declaration on theRightio D€v€lopment andtheILO Recommendatiotr ColcemhgWo*ers,Housing,196l CNo.
_l l5).
l' CESCRGeneralCoffmentNo.4, Pdragraph 3.
CESCRCeDeral ConmeotNo.4. Paragraph 7
' Seegenenly CESCRcenaal Comment No. 4 andceneralCotnment No. 7; OHCH& TheRightto Adequate
Housing,FactSh€€tNo.2l&ev.l (2009).
Codeof the Philippinesaad Rulesof Court providefor other important
legalframeworkthat guarantees
andprotectsthe Rightto Property.
OGPIviolatedtheserightspertainingto severalof Didipio'sresitlents
whenit forcefirllywicted them in contraventionof existinglaws,rulesand
Evidenceobtainedby the Commissionindicatethat OGPIhascaused
the demolitionof at leastonehundrerlandeighty-seven(r87) housesof the
indigenousresidentsin Didipio. Said demolitionswere done uithout a
court order and ruifhoutprovisionfor adequaterelocation,as requiredby
law. This wasreadilyand categoricallyadmittedby Mr. RamoncitoGozar,
OGPI'sVicePresidentfor Communications andExternalAffairs.
In defense,OGPIclaimstlat its conductis lawful.It interposesits (1)
right of immediateentry aad (z) right to exercisethe power of eminent
domaingrantedunto it asan FTAAholder,underSection75on Easement
Rightsand Section76 on Entry into PrivateLandsAreasof the Philippine
Mining Act of 1995,in relationto Sectionro4, Sectionro5, Sectionro7 and
Sectionro8 of its IRR. This right, OGPI claims,was recognizedby the
SupremeCourtin DESAMAus.Gozun.
Precisely,in DESAMAef ol vs. Gonrn et al, the SupremeCourt
classifiedSection75andSection76of the PhilippineMiningAct as"taking"
provisions,justified by State'spowerof eminentdomain.While suchpower
may be invokedand effectivelyexercisedby privateparties(i.e, holder of
mining contractssuchasOGPI),in cooperationwith the State,the remedy
is sfill to file expropriationproceedingsand securethe necessarycourt
order.OGPImaynot demolishand"take"tle residents'properties,without
first complyingwitl the requirementsof law and dueprocess,It cannotbe
gainsaidthat underour laws,demolitionsmustbe donepursuantto a court
order. There being none, OGPI'sconduct is patently unlawfirl and in
violationof the residents'right to properlyanddueprocess.
A closer examinationof the DESAMADecisionwill reveal that
indeed,expropriationproceedings arethe properremedyin casea resident
refusesto enterinto a voluntaryagreementwith a mining contractor.The {t;,:
SunremeCourtsaid: L '"

"An examination of ttre foregoing provisions gives no indication ij

that ttre courts are excluded from taking cognizance of ..1.
expropdation cases under the mining law. The <iisagreemenr. 1?
refened to in Section1o7doesnot involve the exerciseof eminent
dom,ain,rather it contemplatesof a situation wherein the permit "-d)
fol{ers ary allowed by the surface owrers enty into the l-atters,
lands and disagreemgnt ensues as regarding the proper
compensationfor the allowed entry and use of ttre private lands.
Noticeably,tie provision points to a voluntary sale or transaction,
but not to an involuntary sale.s"

5DESAMAs, al vs.cozunera,/,
c.R No. 157882,
This pronouncementof t]le SupremeCourt meanstlat Sectionro7 of the
IRR, in relation to SectionT6 of the PhilippineMining Act of 1995,only
applieswhen the surfaceownershavealreadyenteredinto an agreement
with tle permit holder,tle only controversybeingtle amountto bepaid as
just compensation.It doesnot applyin caseswherethe surfaceownersdo
not agreeto allow permit holdersentry to their lands.In suchcases,the
proper remedy would be for the permit holder, by itself or with the
assistanceof the State,to institute an expropriationproceedingin the
appropriatecourt, as providedunder Rule 67 of the Rulesof Court and
Further, the Commissiontakesparticular note of OGPI'sapparent
schemeof "demolishnow, negotiatelater." This scbemeis problematigto
sayt}releast,asit pushesresidentsup againsttle wall.Thosewhosehouses
weredemolishedwithout their consent- someevenagainsttheir express
will - are now forcedto take the petty sum OGPIoffersin exchangefor
their homes and their lives in Didipio. The residentswere reducedto
acceptingOGPI'sofferandsuccumbing to thelatter'sunlarfrrl ploy.Worse,
a numberof residentswerenevercompensated at all.
While it maybe true that aboutseventy-frve (ZS%)of the resitlentsin
Didipio havealreadyenteredinto a voluntaryagreementwith OGPI,there
is still a considerablenumberof residentstlat has not enteredinto such
agreements. OGPIpositsthat muchof thesepeoplearenot reallyownersof
the land theyoccupy.Assumingwithout conceding,that thesepeoplewere
in fact illegal settlers,this doesnot give licenseto anyone,much less a
foreign-ownedcorporation,to mistreatottrers,in violation of &e dignity
tlat inheresin everyhuman.
Evenin thoseinstanceswhereevictionand demolitionarejustified,
internationalhumanright normsrequirethat theybe "carriedout in strict
compliancewith the relevantprovisionsof internationalhumanrights law
and in accordancewith general principles of reasonablenessand {r
proportionality."e "Evictions should not result in individuals being- / Uii
renderedhomelessor vulnerableto the violationofother humanrights."z
fi'. '
As tlis Commissionhas advisedpreviously demolitionsmust be lv:
conductedin a just and humanemanner.Certainly,in someinstances, ij
dgmol$ons may.be,legallyjustified. However,in no instance,legally oi
otherwise,can the deprivationof one'sshelterbe donein a manier that w
robsa personof his digniry.a $
- FIAAs grart unto its holderthe State'sblessingto undertakemining
and other exfiactivevenhues,and all its necessaryincidents.within its
' CESCRCe4eralCormeff No.
7, Paragraph
I'Commission f6
o[ Humanfughts,Advisoryon the Codductof ForcedEvictioN andHouseDemolitions(06 May
patrimony.It is not carfe blanchefor the wholesaledenigrationof human
rightsof peoplewhostandto beaffectedby saidundertakings.



Closely related to the abovementiouedrights are the Right to

Freedomof Movementand the Fjght Not to be Subjectedto Arbitrary
Interferencewith One'sHome.

TheUDHRexpresslydeclarestheserightsin tle followingmanner:

Article 12
No one shall be subjectedto arbitmry interferencewith his privacy,
family, home or correspondence, nor to attacksupon his honor and
reputation. Everyonehas the right to ttre protection of the law
againstsuchinterferenceor attacks.

Afiicle 13
(r) Bveryonehas tfie right to fteedom of movementand resi<ience
within ttre bordersof eachstate.

The ICCPRreiteratestheseprovisions,to wit:

Article rz
r. Overyonelawfully within the territory of a State shall, within
that territory, havethe right to liberty of movementand fteedom
to choosehis residence.

Article r7
No one shall be zubjectedto arbitrary or unlawfirl interference
with his privacy, fanrily, home or correspondence,nor to
unlawftrl attackson his honor aad reputation.
2. Ereryonehasthe right to the protection of the law againstsuch
interferenceor attacks, (r
i \1'
In its GeneralCommentNo. e7 on Freedomof Movement,tle t,,
HumanRightsCommittee(HRC)clarifiesthat Article 12(1) of the ICCPR
entitles personsto move from one plape to another and to establish
themselvesin a placeof their choice.Theenjoymentof this right mustnot I
be made dependenton any particular purpose or reason and any t-1i' '+J
restrictionsthereofmust be in strict conformitywith law's Moreover,tle
HRCpointed out the obligationof Statesto ensurethe protectionof the
Right to Movement not only from public but also from private
The HRCalsostatedtlat right to residein a placeof one's
choicewithin the territory includesprotectionagainstaUforms of forced
GeneralComme0tNo. 27. Psragaph5.
'"14, Paragraph6.
internal displacement. It also preeludespreventing tle enUy or stay of
personsin a definedpart of the territory."

On the otJrer hand, the HRC elaborated on the Nght Not to be

subjected to fubitrary Interference with One's Home through General
Comment No. 16. According to the HRC, this right is required to be
guaranteedagainst all unlawful and arbitrary interferenceswhether they
emanate from State authorities or from natural or legal persons.o
Furthermore,tle HRC statedtlat tle prohibition on arbitrary interference
is intended to guaranteetlat eveninterferenceprovided for by law should
be in accordancewitl the provisions, aims and objectivesof the Covenant
and shouldbe, in any event,reasonablein the particular circumstances,u

The bundle of property rights guaranteedby domesticlaw also finds

relevanceon this instance.Article 428 of tle New Civil Cod statestlat "tle
owner has the right to enjoy and dispose of a thing, without other
limitations than those established by law." The right of ownership
necessarilyincludes, among others,.7'usutendi (ight to use the property),
jus ft-uendi (right to enjoy the property) and. jus disponmdi (right to
disposeof the property in whicheverway the owner seesfit). Homeowners
havedominion over tleir houseswhich they have a right to enjoy and to do
as they please,evento spoil or destroyit asfar asthe law permits.r4

OGPI violated these rights of the people in Didipio when they

introduced perimeter fences around the Project Area and set up
checkpointsat their chosenentry and exit points. Theseperimeter fencei
blocked off the roadswhich havebeen customarilyusedby the residentsas
pathwaysfor their easyingressand egressto the community. Furthermorg
th9 chgckpoilts causearbitrary interferenceto the firll use and enjoyment
of tle housesby tle residents.

In defense, OGPI claims to have introduced tle perimeter fences

merely to p_rotectits Project fuea flep rrntnryful elements and illegal
settlers. It further asserts that it has been autlorized by the Barangay -.;.
Council of Didipio as well as by tle DENR to estabtsh the checkpointsto
guard againstcontrabands. i\i
rl ,
I, \!,
- Ihe authorization given to OGPI by the BarangayCouncil of Didipio
only relatesto the liquor ban. On the other hand, the authority comingfrim J;I
the DENR is only in respectof arresting illegal logging and illegal mining.
Certalnly, OGPI cannot use tlese authorizitions tol*tify G arbitra;, .1..
interferenceto the enjoymentof the rights of the residentsofnidipio. OCfi \IJ
should have deviseda mechanismthat avoids unnecessaryincoivenience
to the residenceat the sametime that it servesthe purpoie of prohibiting
illegal activities.

" 1d, Paragraph7.

': HRCCeoeralComment No. 16,Paragraph
" Id., Par?'graph
'' Flenmingvs.Sherwoo4139 pac.ZB.
N.W. 101,JotrsoDvs.Crookshankr,29

/rL/t ol
v<: 10
The Commission also observes that the Derimeter fences were
introduced in consciousdisregardof the rights of the residentsof Didipio.
No genuine consultation of the residents was ever had as to the
construction of said fences,much less as to its location. At the very least,
OGPI should have observed the basic principles of participatiou aud
transparencyif it really intended to respectthe rights of the residents in

III. OGPI vrollrrED TrrE Rrcr{r To SEcnRrry oF PERsoNoF firE


The security checkpointssituated along Didipio's main road and

aroundthe perimeterof the ProjectArea are m.anneilby OGPI'sprivate
&e community.
Membersof the PhilippineNational Police-Regional Mobile Group
(PNP-RMG)of Nuera Vizcala and Quirino were alsodetailedin Didipio.
Local residentsof Didipio, however,report that insteadof frrlfilling its
mandateto maintainpeaceanclorder in the community,saidmembersof
the PNP-RMGact as if they were the private security - for OGPI, in
abrogationof their swornduty to servethe piople in trust.
Likeruise,the unlawfrrldemolitionsat ttre instanceof OGPIwerealso
mireclwith violence.For example,during the demolitionconductedon zz
March 2oo8, local residentEmilio Pumihicwasshotwhenhe tried to stoD
the demolitioncrew from dismantlingthe houseof his neighborManuei
Bidaug.Bidangwas then taking a nap inside said house.Accountsfrom
neighborswho witnessedthe shootingincident statethat Emilio pumihic
wasrestainedby two (z) of OGPI'ssecuritypersonnel,while a third - later
identified as Whitney Dongiahon- shot Pumihic at close range while 'ii '
Pumihicwastrying to free himself.The bullet piercedhis upperright arm
and exitedthroughtle upperright part of his back.the shootingincident
occurredin plain view of membersof the Philippine National police. r;"1
Despitethis, said WhibreyDongiahonwas not apprehended. Thesefacts | 'i.,-
wereattestedto by Mr. Pumihichimself,and severalotherswhowitnessed
theincident. i;i
Other membersof tle communitywho stronglyopposelarge-scale :15
mining operations are constantly threatened by violent demolition.
Me-anwhile,leadersof the oppositionistswere criminally chargedwith
violationsof theForesbyCode.

This stateof affairsin Didipio constitutesa continuingthreat to the

securityof personsof the peoplein Didipio. It e4rosestlem to constant
uncertainty- to an incessantfear that somethinguntowardmight happen
to them, their.family or their properties.Rightly so, the local governmem

units in t}te areaeqnessedgraveconcernsthat tle situationwouldleadto
breakdownof peaceandorderin the province.
OGPIis largelyresponsiblefor the continuingthreatsto securityof
persons,given that it controls and supewisesthe actionsof its security
forces,andthat tle unlawfuldemolitionswereconductedat its behest.



SinceDecemberzoo7,OGPIhascausedthe demolitionof at leastone

hundred and eighty-seven(r87) housesin Didipio. Over and abovethe
ilegality of subh conduct, this demolition resulted in the forced
displacementof at least one hundred eighty-seven(r87) families who
considerthesehousestheir home.Majority of whom wereforcedto leave
Didipio for good, and abandontheir indigenouScommunity,customs,
traditionsandwayof life.
Certainly,the impact of OGPI'sdemolitionsis irreducible to the
physicaldismantlingof ttreresidents'houses.Demolitionandthe attendant
displacementof indigenouspeopleseffectivelydenysaidpeoplesthe right
to enjoy and manifest their Ifugao culture in community with other
members of their incligenousgroup, It means the dislocation and
displacementof women,men andchildren.It meansthe destructionof life
anda uay o/ft/e intimatelyconnectedwith the land they nurhued,wi& a
viewto leavinga legacyfor their childrenandtheii kin that will comeafter.
Thus,the Commissionfinds that OGPI'sdemolitioncontravenes the
rights of indigenouspeoplesunderArticle z7 of the Covenanton Civil and
PoliticalRiglts, whichguarantees indigenouspeoplesthe right to manifest
and enjoy their cnlture,both individually and ii commuiitg with other il
membersof their group.Article r of tle UnitedNationsDeclarationon the
Rightsof IndigenousPeoples("UNDRIP') further guaranteesindigenous
peoplesthe right to ttrefirll enjdymentof all humanrightsandfundamental
freedoms,as individualsand cs o coLlectiue. The corollaryobligationthus r'r'
consists in ensuring the survival and continued developm6ntof the {.
cultural,religiousand socialidentity of minority groups,thui enrichingthe
fabricof societyasa whole.u t$
_ In.demolishingthe houles of indigenouspeoplesin Diclipio,OGpI {
effectivelyprecludedthem of the right lo enjoy, manifestand ceiebrate -.h
their. culture in c3r-nmulity_withtheir indigenous$oup. It irreparably
impairedthe conditionsby which the Ifugaosof Didipio,in trarmoirywitir
tleir land aad eachotler, previouslypricticed Ifugio culture,traditions

Gen*al Conmen No. 23 u N.Doc CCpR/c/Rev.l/Add.s (1994),palggr[ph 9.

H.k Coo,JJ-.,

, /!t
REsottRcEoF DIDIpro, posslBr.y ENDANGERTNG
rHE Comuurrry's

The Right to Water entitles everyoneto sufficient, safe, acceptable,

physicallyaccessibleand affordablewater for personaland domesticuses.'o

The CESCRGeneral Comment No. rS is the first document that

defined the rigbt to water. In this document the Committee emphasized
that while there is no explicit mention of a'right to water'in the ICESR,the
right to water is indispensablylinked to the right to adequatestandard of
Iiving (Article rr) antl the right to the highest attainable standard of health
(Article rz). Furthermore, the Committeeexplainedthat the right to water
is essentialin the fulfiIlment of the right to life and human dignity. And
while there is no explicit mention of the Right to Water in the UDHR,
ICCPRand ICESC& the samehas alreadybeen recognizedin many other
treaties, declarations and international documents. For instance, Article
z4(z) of the Conventionon the Rights of the Child requires Statesparties to
combat disease anil malnutrition "through the provision of adequate
nutritious foods and clean drinking-water." On the otler hand, Articie r4
(z) of the Convention on the Elimination of All Forms of Discrimination
against Women statestlat women shall have the right to "enjoy adequate
living conditions; particularly in relation to... water supply."-The Geneva
Converrtionson .International Humanitarian l,aiv require combatants to
provide drinking water to POWs and civilians stranded in the armed
conflict(GCIII Articles 20,26, 29,46; Ap II Article S (r)), and evenmake
the destruction of drinking water installations anclirrigations punishableas
war crimes (AP I erticle 54 (:), AP II Article r4).'z

- AII doubts as to the legal existenceof the Right to Water were finally
settled when tle UN GeneralAssemblyadopted Resolution64/L.6g on zB
July eoto declaring "the right to safe and clean drinking watir and
saaitation as a human right that is essentialfor the full eniottrent of life
and all human rights." Ttrus, the Right to Water is now idlntified as a
distinct human right.
- -Paragraqh,rr o{ CESCRGeneral Comment No. $ emphasizesthe
broad scopeof the-Rjght_toWater and puts in place a general'standardby /as
which to measurethe fulfillment of such a right: tx\'
"The.elem- €nts of-the right to water must be adequate for hnnfin .,tJ
dignity, life and health, in accordancewith Articles ll(r) and rz.
'' CESCRGederalConlaentNo. 15.
".other docr*Jrts thatrcferto tlrc right to waterincMe the following:theconventionotr theRightsof po^ons
wtthDisabilitiesithe Aficatr charteroD$e Rightsandwelfareoflhe cfild; tie pmtocolto theAriica! charteron
turtrafl aooreopresRigr,tsotrtbetughtsof womenin Aftica; unitedNationsEconomiccormissioufor Europe
(JNECE)ProtocolonwateraM H€alth;Agadda21,adopted st theudted Nationsconferenco odEnviroDdent and
Development cJNcED); tha Mar del plataActionplan;theprog.'EmeofActior ofthe hteaationalconfercnc€
g.Pqp{aqo! a4 Development; The UN-Habitatptaa of A9tion; anddle variousR€solutions adoptcdby the
UnitedNationsCeneralAssombly andtheConmissionotrHumanRights,aswell asotheroxDertalocumonts.
I /-' .------.--
,tt 13
The adequacyof water shouldnot be interpretednarrowly, by mere
referenceto volumetric quantities and technologies.Water should
be treated as a social arid cultural goo4 and riot primarily as an
' economicsood,
-be lhe manner of tJrerealizationof the rieht to water
must also sustainableensuringtlat the right can b;realized for
presentard future generations."'8

Paragraphrz further identifiesthe threecommonelementsor factors

tlat aresaidto applyuniversallyin all circumstances:auailabilitA,qualitA
and accesshilw,re lhe absenceor diminution of any of tlese three
elementstranslatesinto a violationofthe right to nater.
Auailabilitymeansthat therehasto be a sourcewherepeoplecanget
sufficient quantity of water for their personaland domesticuse. This
includes water for drinking, personal hygiene, footl preparation and
cooking,washingof clothes,and householdsanitation.Not only should
therebe enoughwaterto meetbasicdailyneeds,but the supplyshouldalso
be continuousor regular.

Quclirg meansthat water must be safe- it must not threatentle

healthof thosewho useit, Thus,watermustbe ftee from microorganisms,
chemicalsubstances and radiologicalhazardsthat causehumandiseases.
Moreover,thewater'scolor,odorandtastehaveto beacceptable.
Accessibilifumeans that water and water facilities and services
shouldbe alailableor accessibleto anyone,without discriminationof any
kind. It has four aspects: 1) Physical Accessibility; z) Economic
Accessibility;3) Non-discrimination;and4) InformationAccessibility.
As for domesticlaw, PD to67 alsoknown a$the Water Codeof the
Philippinesgivespriority to ensuringwatersecurityfor domesticpurposes.
Article zz of saidlaw niovides:

Art 22. Betweentwo or more appropriatorsofwater from the same :1'

sourcesof supplg priority in time of appropriation sball give the "i.
better right, excepttbat in timesof emergencgthe nseof witer for
domesticand.municipal purpses shall hauea better nght ouei all
otfter uses;Provided,that whercwater shortageis recurint and the ftl
appropriator for municipal use has a lowei priority in time of f !\i"
appropdation,then it shall be his dutv to find an alternativesource
o-fsupply in acco_rdance
(enphasis addeil).
with conditions prescribedby the Council r$
The collectivity of tlese norms establishestwo key points: (r) a :g
recognitionof the right to water as a distinct human righ! and (2) an
acknowledgmentof the State's obligation to ensure the security-ancl
availabilityof safeandcleanwatersupplyfor domesticpurposes.
t: CESCRGeieralConnentNo. 15,paragtaph
I l.
" CESCRG€neralComeentNo. 15,Paragmph 12.

Althoug! thereis asyet no breachof a right-dutycorrelative,it is with
great cautiontlat OGPIshouldproceedwith its plan of diverting water
flowing through.the Tubo Creekand the DinauyanRiver - the Diilipio
community'sprimarysourcesof water- to facilitateits miningoperations,
as the sameposesa serioustlreat to the quantity and quality of the
In termsof guanfitg,giventhe immensevolumeof waterrequiredto
processmineral ores,there is no certainty that an amount sufficient to
sustainthe communitiesin their day-to-daydomesticand agriculturaluses
shall be left. The local communitiescould ill-afford a warer resouroe-
intensive indusby such as mining competingwitl tleir domesticand
agriculturaluses,especiallysoin light of the swereandprotracteddrought
(El Nrno) the provincehasrecendysufferedfrom andis predictedto suffer
more frequenflyin the future becauseof climatechange.The Commission
alsonotesthat the provinceof NueraVizcayawasspecificallyidentifiedby
the Departmentof Agricultureas being particularly"vulnerable"2o to.the
- -
effectsof El lVino.2rAs such,cleanwater scarceasit is is boundto get
In terms of qualitg, contaminateddischargesfrom the mine
processingplants and tailings pondscould seepinto the river systemsin
the areavihichcouldcausehuman,aaimalandenvironrnentalhazardsthat
would eventuallyrender the water unfit for any and all uses it has
OGPI is thus advised to exerciseprudence and extraordinary
diligenceshould it utilize ttre Didipio's water resources,lest it violate
Didipio'sindigenouscommunity'shumanright to *ater.



The PNP Manual on Police Operational Proceduresprovides for

standard operational conduct for tle police in general and special rl!
procedures.Rule r9 thereof treats the standard procedure in Demotition
'o To be
"lulnqtabl6"idplies s sceptibilityto, but imbility to copewitfr,c6.tainadvolseimpacts(i.e. ltat ofEl SJ
NiDo)lFounbQuar.erlyReportofthe tnteBovernmental PmeJonClimareChange].
" D-4 lrcs! Offic€. DA SeLtAsideP569-Mfot El Nino MitigationMeatnes tu paldy Sector[afiiclo onlino], 3
a\ajlableat http/w\a,w.da.eov.ph/nowirdex2.php?pass=News_ evefis/2oto/febfebo2_20loa.hrnl.
- Accordingto \F 4'
Suane ! Reportof rheInter-gol,enmernal Pdnelon Ctirnat Aange (I?CC), ClillLedie
chargeis €xpectedto exaterbatecurent st€sseson waterrcsourcsfiom populationgrotth and economicand
led-use changex x x Dmught-afected areasale projoctcdto increasein,oxtent,with the potentialfor adv€Ne
impactsotr multiplesectolqincludingagricutturo, wat6r6upply,on€r$/productionandheal$. Regionally,largo
itrcrcas$in irrigationwatordematrdasa resultofolinate changes areprojected.xxx
- Euviromental
and Sooial Impacts of Mi ng lafiicle odine], available 6t h$p://pdf.rri.org/
rdlinlback$ound litemture_rcview.pdf.
-- tf,
Orders, I4junctions, and other Similar Orders. The relevant pmvisions
thereof are directly quotedhereunder:

Sec. r. Role ofthe PNP in the Enforcement ofa Demolition

Order -

a. Police assistancein the enforcementor implementation of a

demolition or injunction order shall be grantedonly upon a written
request of ttre Sherriff or authorized representative and
accompaniedby a valid order issuedby a competentcourt and / or
with wdtten permission from ttre Presidential Commission for
Urban Poor. Moreover,said police assistanceshall be coordinated
and clearedwith tle concernedmayorbeforeits enforcement.

b. The duties of PNP personnelin any demolition activity shall be

limited to the maintenanceof peaceand order, protection of life
and property, enforcement of laws and legal orders of duly
constituted authorities, and to perform specific functions
prescribedby law.

c. PNP personnel tasked to provide police assistaneeshall be in

proper uniform and will be led by an officer during t]re actual and
legal relocationphase.Theg shall be limited onlV to o@lrpAingthe
first line of law mforcement and ciDil alisturbancecontrol; shall
not pqrticipste in thephgsical ilismantling af ang structure subject
of evictbn tr ilanolition; qnd shall refrain lrom the use of
rmnecessaryand unreasonableforce (emphasisadded),

Rule zr of the OperationalProceduresdealswith Civil Disturbance

Management(CDM)Operations.Provisionsapplicableto this casearethe
Sec. z. $peciffc Guidelines -


z. The membersof the PNP CDM contingent sftall not cang ang
kind of frearms but may be equippedwith baton or riot sticks,
crashhelmetswith visor, gasmasks,boots or anlde-highshoeswitl
shin guartls(emphosrsaddedJ.

3. Tear gas, smoke grenades,water cannons,or any similar anti- 1 1,;

riot deviceshall not be usedunlessthe public assernblvis attended
by acnral violence or serious threats of violence, or deliberate ,.i,,
destructionof property.

xxx ri
Sec. 6. CDM Operational Arproaches -
xxx '"'#

z. In selecting an operational approach to a civit disturbanc€

situation, tle Commanderald his staff must adherescmDulouslvto
the 'minimum necessaryforce" pinciple,fot
example,crowdcontrol formationsor riot control agentsshould not
be used if saturation of area with manDower would sufEce


On Octoberz, 2oo9,at least165policemenweredeployedto Didipio

to assistOGPIin the implementationof the writ of executionissuedby the
PanelofArbitratorsagainstthe Heirsof lawagan.Earlierthat dar at about
3:oo to 4:oo in tle morning,the houseof Elmer Lawaganwasburnedby
unidentifiedmel, someof whomweresuspecterl to be membersof OGPI's
securityguards,lawaganwas alsohit on his headby a hard wood from
behind. When the residentssaw later in tle morning of that day that
OGPI'sdemolition was readyingto tear down Lawagan'sother houses,
completewith a multitude of policemen carryinghigh-poweredfirearms
escortingthem, the people immediatelyformed a human barricadeto
preventthem from doing so. The policetried to break the barricaileanil
that is whenthe situationbecamechaotic.Thepolice gas
'watercanonto dispersethe barricadingpeople,The then usedtear and
when the RegionalTrial Court issued a TemporaryRestrainingOrder
enjoiningthe demolitionof Lawagan's propertiesa fewhourslater,
Regardless of who startedthe violencebetweenthe policemen and
the protestingpeopleon Octobero2, 2oog,it appearsquiteclearlythat the
policeviolatedits own operationalproceduresin approachingdemolition
and CDM operations.It is expresslystatedin the PoliceManualthat the
police should nol carry any firearm during a CDM operation,which is
practicallythe role the PNPshouldtakeduringan executionof a demolition
order. Ukewise,the policeshouldhaveexercisedmaximumtoleranceand
usedminimum and reasonableforce in dealingwith the protesters.It is
quite obviousthat the deplol'rnentof 165 police men - most of whom
carried high-poweredfirearms to support the Sherriff in executingan
appar"lt demolitionfrom the POA- is but waybeyondwhat is reasonably
calledfor underthe circumstances. Simplypu! it wasan overkill.
Thepolicearguesthat only45 policeofficersweredirectlyengasedin :
CDMoperationsthat dayandthat the rzo policeofficerswho carriEdhieh- n
powered firearms were there to respond to intelligence reporb t[at nl
"communists/terrorists"(CTs) might sow violence on tle iame dav. 'i'',''
However,the policedid not furnish the Commissiona copyof anv official /
intelligencereport indicatingthreatsof a CT attackin Didipio on October
02, 2oo9.But evenassumingthat thereweresuchintelligencereports,why r.:"1
was it tha! accorrlingto PNPProvincialDirector Supt. pedro Danguilan, ,i".
only 60 police officers were deployedto areas d Didipio repo.tedty I
frequentedby CTs?Wherewerethe 6o otler policeofficers-whowire atsi, - ii
carrying high-poweredfirearms? In the absenceof any reasonable \
explanationwhy 165policeoffrcersweredeployedin Didipio on that day,
the inescapableconclusionis that they weredeployedto assistthe Sherriff
andOGPIin carryingout the demolitionof Lawagan's properties, n
tt-- ,t l\{
-. TheCommissio!alsoexpresses its deepconcernoverreportsthat the
policedeployedin Didipio aretakingthe sideof OGpIinsteadbfprotecting
$e ggneralpeaceand order.For example,it wasreportedthat during thE
demolition conductedon zz March zoo8, local residentEmilio puriihic
wasshot when_he-triecl to stop the demolitioncrewfrom dismantlingthe
holse of his neighborManuelBidang.Bidangwasthen taking a napiiside
saidhouse.Acgountsfrom neighborswho witnessedthe shootingincident
state that Emilio Pumihicwas restrainedby two (2) of OGpI,i security
personnel,while a third - later identified as Whitrey Dongiahon- shot
Pumihicat closerangewhile Pumihicwastrying to freehimself.Thebullet
piercedhis upperright arm and exitedtlmugh the upperright part of his
back.Theshoo',ngincidentoccurredin plain view of membersof the pNp.
Despitethis, tle policedid not apprehenal WhitneyDongiahon.In another
incident,a memberof PNP-RMGpubliclydisrespected a barangayofEcial,
Councilor-EduarioAnanayo.In the eveningof z3 March 2oo8, the day
after the demolition,SeuiorPoliceOfficer4 ("SPO+")NoelValdezslapped
CouncilorAnanayo,accusingtle latter of instigatingthe local residentsto
fire their gunsat night to intimidateOGPI'sstaff.On top of all these,there
areallegationsthat tlre PNP-RMGdeployedin Didipio il keepingstahonat
The Commissionremindsthe securitysector,particularlythe pNp-
RMGin Didipio, ttrat ttreyarethe protectorof all people,not solelyof tle
rich andthe powerfirl.


In light of the foregoing, the Commission RESOLVES


r. Recommendto the government under ttre new aclministration to

look into the issues presented herein and consider the probable
withclrawalof the FIAA grantedto the foreip companyin view of the t
grossviolations of human rights it has committed; I'ot
2. Require all concernedagencies,particularly the NCIP, the DENR- l * -
MGB, t}le PNP and the AFP, to submit reports to the Commissionon ,1
Human Rights regardingconcreteactionsthey havetaken t o respect, .--)r
protect and firlfill the rights of the affected community in Didipio, .!""1
witlin 3o daysfrom receipt of tlis resolutionl 'tY
3. Requestthe sameagenciesto contiuue monitoring tle human rights
situation in Didipio with the view in mind that all reports of violations
be verified and actedupon;

4. Advise the OGPI to considerthe findings aboveand conduct a policy

re-orientation on the conduct of mining operation taking into

of humanrights of the community
consciousaccountthe observance

5, Direct the CHR RegionII offlce to activelyatlvocatefor the human

rights of the affectedcommunityand to take everysteppossibleto
avoidthe occurrence of furtherviolenceancloppression'

Donethis roe dayof Januaryzorr, QuezonCity,Philippines.

/s'&r-&*f 6*k!-
Chaimerson )#r

'u- q.A 4/.+