August 20, 2010
An article by Professor Harry Roque published by the Asian Human Rights Commission
August 20, 2010
It was not the ideal image to wake-up to. There he was: naked, emaciated and cringing from pain whenever his torturer would pull the rope attached apparently to his sex organ. He was hog-tied like a beast lying on a cold floor. His torturer, on the other hand, was stocky, full of energy, and apparently, god-like in the belief that he had in his hands—literally and figuratively- the decision on whether his victim was to live or die. Only a beast would not be moved by the said image. And yes, being the squeamish person that I am, I could not help but shed a tear or two after seeing that disturbing image.
Perhaps, the only good thing that came out of this image of torture is the public indignation that it created. It was indignation over the fact that these barbaric acts are still happening in this country at this time and age. It was also indignation at the fact that contrary to public perception that torture is practiced in remote areas of the country, here was proof that it is also happening at the heart of the metropolis, even in Tondo, Manila. We probably needed to see that image to remind us that regardless of who occupies Malacañang, torture persists and with impunity at that. The helpless victim, and the brave soul who publicized the video, have reminded us that unless and until we successfully put torturers behind bar, more of us may fall victims to this barbaric and heinous act.
Torture is defined as the infliction of physical, mental, or psychological pain either for the purpose of exacting information such as a confession to the commission of a crime; or as a form of punishment. It has been prohibited since ancient times principally because of the dictates of natural law and humanity, that is, human beings should not be intentionally harmed. Why? Simply because it should not be done to human beings. This explains hence why torture is prohibited in both times of war and in times of peace.
The prohibition and the criminal nature of torture is described as “jus cogens”, or non-derogable. This means that unlike rights such as freedom of expression and freedom of the press which may be derogated upon in some instances, the prohibition on torture is absolute. It cannot be justified on any ground including that of public emergencies or grounds of national security. Moreover, the duty to investigate, prosecute and punish those who may commit torture is itself non-derogable, and further subject of what is known as “erga omnes obligation”. This means that any state, and not just those with material interest, may sue another for the violation of the duty prohibiting the commission of torture.
Furthermore, owing to the normative character behind the prohibition of torture, states which, for any reason, could not investigate, prosecute or punish torturers are also duty-bound to extradite the person of a suspected torturer to another jurisdiction that is able and willing to prosecute and punish him. Corollary to this is the duty of states to refrain from rendering individuals to a jurisdiction that is known to practice this barbaric act.
The Philippines has been a party to the Convention Against Torture for over 25 years already. Sadly, it was only last year when we finally fulfilled our treaty obligation under the same to criminalize torture as a grave offense under our domestic laws. Prior to the passage of RA 9745 which finally criminalized torture as an offense and RA 9851 which also criminalized torture when committed in the context of an armed conflict or in a widespread or systematic manner, torture was only penalized as physical injuries or maltreatment of prisoners. This was condemned rightfully so by human rights advocates because our treaty obligation was to criminalize torture specifically as a grave offense under our domestic law.
The public discussion provoked by the video aired by ABS-CBN on whether the said video of torture would suffice for purposes of criminal prosecution further attests to the lack of understanding of our treaty obligations under the anti-torture convention. In fact, the entirety of our rules on criminal procedure constitutes a breach of our treaty obligation to investigate and prosecute suspected instances of torture whether or not there is a formal complainant against it.
This is because under existing rules of the National Prosecution Service, a preliminary investigation into the commission of any crime is pursuant only to the filing of a formal complaint. This is in breach of the treaty because such a complaint should not required. A state is under a positive duty to investigate when there is information that torture was probably committed. This means that authenticated or not, such a video clip is sufficient to trigger our duty to investigate regardless of whether such would be sufficient to convict anyone in court.
There are pending issues arising from what appears to be differing definitions of torture under RA 9745 and RA 9851. This is on the matter of who may commit torture. Our special law adopted the definition under the anti-torture convention that it could only be committed by state agents. The IHL law, on the other hand, adopts the progressive definition that it can be committed by anyone in the custody of another. This debate, fortunately, does not figure in the controversy stirred by this video clip if only because without a doubt, it was committed in the heart of the City of Manila, an area without an armed conflict, and presumptively by state agents given circumstantial evidence that it was in fact committed in the premises of a Manila police station.
We hope that the identity of the victim who has apparently also become a victim of extralegal killings is soon ascertained. This is a humanitarian concern because his family after all, regardless of who he was in his lifetime, have a right to grieve for his demise and under such painful circumstances at that. More than this, we hope that with no less than two laws now prohibiting torture as grave offenses in our statute books, that torture would soon be a thing of the past. We are hoping that given the promise of P-Noy that he will usher the winds of change, that amongst these changes will be the effective investigation, prosecution and punishment of torturers. Only then could that poor victim in that video, and the many others before him, truly rest in peace.
About the author: Harry Roque is a professor of law at the University of the Philippines (UP) and a well-known human rights lawyer. This article has also been published in Manila Standard Today and in his blog.
The views shared in this article do not necessarily reflect those of the AHRC, and the AHRC takes no responsibility for them.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.