Submitted by the Asian Legal Resource Centre, April 27 to May 15, 2009
Introduction
The use of torture and ill-treatment continues to be a significant problem in the Philippines despite such treatment being prohibited in the country’s Constitution and the country being a State Party to the Convention Against Torture (CAT)…
Given the many cases of torture that the Asian Legal Resource Centre (ALRC) and its sister-organisation, the Asian Human Rights Commission (AHRC), have documented, as well as the glaring lack of domestic legislation and other provisions to ensure that any allegations of torture are investigated, prosecuted and reparation is provided, the ALRC deems that the government of the Philippines is not complying adequately with the most basic provisions of the CAT and urges the Committee Against Torture (the Committee) to intervene strongly with the government in order to ensure that the government takes all appropriate measures without delay or equivocation…
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1. Article 2:
1.1. Lack of domestic remedies: As mentioned above, amongst the most serious obstacles to the prevention of acts of torture is the lack of domestic legislation criminalizing such acts. This engenders impunity and also acts to tacitly encourage State agents to make use of torture, safe in the knowledge that they will not face criminal prosecution if they use torture. Despite the Constitution prohibiting torture, the lack of domestic legislation in conformity with CAT prevents the justiciability of the right to be free of torture, should victims seek legal remedies in court. Since the proposed law criminalizing torture was first introduced in 1998, during the 11th Philippine Congress, numerous versions have been filed and reintroduced one after the other without the law being enacted. Once a Congress fails to enact proposed legislation, those promoting it have to start again and the process is arduous.
1.2. The government’s failure to enact a domestic law on torture is a grave of concern and illustrates the lack of urgency and priority on the part of the government to eradicate torture and give meaning to the Convention to which it is party. In the absence of a law, torture victims have to seek remedies from the avenues available, despite these not responding adequately to their needs.
1.3. Available avenues not sufficient, effective or in compliance with CAT: under available legislation, torture victims have the following legal options, which remain inadequate as they do not address the severity, nature and State-responsibility concerning the practice of torture. Under the Revised Penal Code (RPC), Article 266 concerns: “slight physical injuries and maltreatment, the crime of slight physical injuries shall be punished.” Article 235 concerns: “Maltreatment of prisoners, the penalty of arresto mayor in its medium period to prision correccional in its minimum period, in addition to the liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention prisoner under his charge, by the imposition of punishment not authorized by the regulations, or by inflicting such punishment in a cruel and humiliating manner.” Article 247 concerns: “Death or physical injuries inflicted under exceptional circumstances.”
1.4. Complaints not recorded or acted upon effectively: the above acts are ascribed jail terms and fines, however, when torture victims seek legal remedies by filing complaints concerning such acts under these legal provisions, their complaints either suffer excessive delays or are refused by the investigating agencies, who invoke the doctrine of ‘sub judice.’
1.5. Example – the case of the ‘Abadilla Five’: after the Commission on Human Rights (CHR) concluded in its investigation in July 1996 that there was a prima facie evidence to prosecute the perpetrators of torture involved in this case, (1) the Department of Justice (DoJ) investigating the complaint had it dismissed in August 2001, not on the merits of the case but on the ground of ‘sub judice’. At the time, the complainants also had charges against them that the police had filed pending in court. It was only in January 2003 that the complaint the victims filed for violation of Articles 263, 286, 124 and 125 of the Revised Penal Code (RPC) and the Rights of Persons Arrested, Detained or under Custodial Investigation (Republic Act RA 7438) were endorsed by the Office of the Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) for their appropriate action.
1.6. Excessive delays: beyond the lack of legal avenues, significant and avoidable delays also form part of the serious obstacles that face victims of torture seeking redress. Again concerning the case of the “Abadilla Five,” after the CHR first filed the complaint, it took seven years to determine whether or not there was a case for the perpetrators to answer in court, and six years later the MOLEO has not filed any charges against the perpetrators in court. The most recent information that the victims’ legal counsel has received was on July 16, 2007, at which time the case was labelled as being “still pending for preliminary investigation.” Amongst other things, this is in contravention to the authorities’ obligations under section 13 of the Ombudsman Act of 1989 (Republic Act 6770), in which it is stipulated that the investigating authorities “shall act promptly on complaints filed in any form or manner against officers.”
1.7. On April 21, 2008, the UN Human Rights Committee held that the Philippine government had violated article 14, paragraph 3 (c) of the ICCPR for unduly delaying the conclusion of the accused persons’ appellate review in the case of the “Abadilla Five.” (2) Despite the Committee’s ruling, the Supreme Court (SC) has yet to resolve the complainants’ Petition of Certiorari that was filed in May 2008 questioning the legality of these five persons’ convictions.
1.8. Section 6 of the Speedy Trial Act (Republic Act 8493) stipulates that the “entire trial period not exceed one hundred eighty (180) days from the first day of trial.” However, this is rarely the case, due to a range of reasons causing excessive delays. Furthermore, the exemption clause under the Speedy Trial Act has made the law ineffective in practice.
1.9. Examples of trial delays: In the case of torture victims Jejhon Macalinsal, Aron Salah and Abubakar Amilhasan in General Santos City, (3) the trial of their case has been repeatedly postponed due to: the prosecutors’ failure to ensure that their witnesses appear in court by failing to notify them to do so; the absence of court stenographers and the absence of court judges and prosecutors due to their attendance of seminars elsewhere. Also, in another case, it took the court over three years to decide whether or not there was a case for five torture victims, namely Tohamie Ulong (minor), Ting Idar (minor), Jimmy Balulao, To Akmad and Esmael Mamalangkas, (4) to answer in court after the security forces had them arrested in Cotabato City on April 8, 2002, over allegations that they were involved in a bomb blast in Davao City. The case of Pegie Boquecosa,(5) further exemplifies this problem. He was arrested by the police on September 11, 2002, in Maasim, Sarangani, but it was only in October 2005, three years after his arrest and subsequent detention, that he was charged in court. The prosecutor, Alfredo Barcelona Jr., attached to the Office of the Provincial Prosecutor in Alabel, Sarangani, had failed to resolve whether there was probable cause to charge Boquecosa in court. It was another prosecutor who finally resolved the case, but Mr. Barcelona has reportedly not been held to account for his neglect.
1.10. Delays prevent torture complaints: In the first two of the three cases in the paragraph above, the victims have not been able to file complaints in court concerning the torture to which they were allegedly subjected while in police custody, because the case the police filed against them has not yet concluded.
1.11. The ‘Presumption of Regularity’ used to justify torture and provide impunity: with regard to the justification of torture by superior officers, pre-emptive impunity is being granted to members of security forces accused of torturing and/or illegally detaining torture victims. Such perpetrators are protected from prosecution even before allegations against them can be investigated, because government agencies tasked with investigating complaints, such as the MOLEO and public prosecutors, are able to invoke the ‘presumption of regularity’ to exonerate such persons before investigations are conducted and concluded. This presumption is meant to apply only when the performance of the officers’ duties has been regular, but it is being misused to unjustifiably cover all acts by members of the security forces. Even in cases in which serious allegations have been made concerning irregularities in the performance of officers’ duties, this doctrine has still been invoked.
1.12. An example of pre-emptive impunity: Gemma Lape, (6) a labour activist, was threatened with death by a police officer in Rosario, Cavite after having been arbitrarily arrested and detained on September 28, 2006. The court later ordered that she and her colleagues be released after charges against them were dropped. On January 8, 2008, the MOLEO resolved to “close and terminate” the investigation they were conducting ruling that the police could not be held accountable by invoking the principle of “presumption of regularity,” which appears to claim that the policemen were performing their duties in an acceptable fashion.
1.13. The lack of clear legal basis which indicates that on what basis an act performed by a State agent can be considered as being ‘regular’ has meant that the interpretation of the “presumption of regularity” is heavily dependent upon individuals, such as special Ombudsman investigators or prosecutors, and is therefore being applied in an arbitrary, unpredictable way. An associate justice of the Supreme Court has held that ‘the Presumption of Regularity cannot apply where the performance of duty is tainted with irregularity.’ (7)
1.14. The lack of an effective register of detainees: the prison system is poorly organised, with no central, well organised register of detainees, which feeds the problem of torture and impunity for this practice. The Bureau of Corrections (BuCor), which is under the Department of Justice (DoJ), is responsible for those “sentenced to serve a term of imprisonment of more than three (3) years.” (8) The Bureau of Jail Management and Penology (BJMP), which is under the Department of Interior and Local Government (DILG), is responsible for “persons detained awaiting investigation or trial and/or transfer to the national penitentiary.” (9) Further to detention facilities under the (DoJ), the BJMP or the Jail Bureau, “exercise supervision and control over all city and municipal jails” and the respective provincial governments where the provincial jails are located also exercise ‘supervision and control’ and operate autonomously from the DoJ. The operation of city jails, municipal jails and provincial jails, are directly under the supervision and control of the respective local governments. The operation of provincial jails depends solely on the availability of fund of the province. Should a particular province suffer from a lack of budget or resources, resulting in deteriorated detention conditions, the Department of Justice (DoJ) could not intervene as it lacks jurisdiction.
1.15. Torture victims Rundren Lao and Jefferson,(10) who were then detained at the Benguet Provincial Jail, suffered attempts on their lives in August 2006. The Philippine National Police and the DoJ could not intervene to investigate the incident as they had no jurisdiction over the detainees and the jail. The victims accused the provincial jail officer of placing a person who was plotting to kill them in the same cell as them. The jail authorities also reportedly allowed the entry into the detention facilities of persons who had links with the policemen that they had accused of torturing them.
1.16. Activist Joselito Tobi, (11) died under suspicious circumstances while being detained in Leyte Provincial Jail on 12 July 2006. He and his fellow detainee, Arniel Dizon, had been receiving threats for a week prior to his death. However, there had not been any thorough investigation as to the cause of his death. His family was only told that he died of food poisoning.
1.17. There have also been suspicious deaths in city jails under the BJMP. In December 2005, three inmates, Mary Jane Mancera, Vicente Abella (12) and Arthur Esquelona, (13) died under suspicious circumstances at the General Santos City Reformatory Centre (GSCRC). The BJMP conducted their own investigation into these incidents and concluded that the deaths were the result of diseases, even though the victims’ dead bodies had injury marks. The local police station, Makar Police Station, under the General Santos City Police Office (GSCPO), whose area of operation includes the jail, has refused to investigate the incident invoking lack of jurisdiction over the jail.
1.18. The lack of centralized and organized system for recording the list detainees, for instance, between the DoJ and the BJMP also results in problems, such as the former not knowing that detainees in the custody of the latter are being held without formal charges filed in court or for years without trial. Pegie Boquecosa, (14) was held for six years at the Sarangani Provincial Jail without trial. Zosimo C. Mariado, (15) was held for months at the Quezon Provincial Jail without charges having been filed against him in court. In such a state of chaos, torture and the possibility of covering it up becomes far easier.
1.19. No adequate compensation for torture: Should torture victims decide to seek compensation, they can make compensation claims through the Board of claims for victims of unjust imprisonment or detention and victims of violent crimes (RA 7309). Although the law can provide monetary compensation, including to victims of torture, it does not address the other special needs of victims of torture, such as treatment and rehabilitation. However, the maximum amount of compensation the Board can award, should an application be approved, “shall not exceed ten thousand pesos 10,000.00 pesos (USD 207)” and this amount has not been increased since the law was enacted in March 1992. Furthermore, applications need to be filed by victims “within six (6) months after being released from imprisonment or detention, or from the date the victim suffered damage or injury” otherwise, the victim would be considered to have waived his/her right. This requirement can be impractical for victims of torture who remain in detention and either have no access to this mechanism or are not informed about it. Even if they are able to avail themselves of this mechanism, the compensation that victims of torture can receive from a system that is not tailored to take into account the gravity of torture and the specific requirements that it engenders can at best only receive relatively derisory compensation from it.
1.20. It should be noted that vulnerable sectors of society, are even less likely to be informed or be able to avail themselves of such compensations. There is no legal assistance or sufficient information readily available for them about how to apply, in particular when the victims are not literate, or when it took place in remote and areas, for example and in particular concerning indigenous peoples. Furthermore, the fear of reprisals by soldiers and the police frequently dissuades victims from pursuing any legal remedies and claims for compensation.
2. Article 10:
2.1. Training not specific on the ‘prohibition against torture’: Under the Republic Act No. 6975 and its Implementing Rules and Regulations, Rule VI section 16 (a), requires the National Police Commission (NAPOLCOM) to exercise ‘administrative control’ over the Philippine National Police (PNP) in terms of “promulgation of policies, standards, plans and programs.” Rule X, section 71 (a) authorizes the Philippine Public Safety College (PPSC) to “formulate and implement training programs for personnel of the PNP, Fire and Jail bureaus.”
2.2. NAPOLCOM and the PPSC have the primary role in developing programmes relating to education and training of the PNP, but have thus far failed to include specific training modules on the prevention of torture. Separately, in February 2009, the PNP announced in a press release of entering into a Memorandum of Understanding (MOU) with the Hans Seidel Foundation (HSF), non-government organization based in Munich, Germany, for the implementation of various PNP Human Rights programs. The PNP’s Human Rights Affairs Office (HRAO) have also claimed that “a total of 424 of police personnel have undergone four (4) Human Rights Deepening Seminars and 141 police personnel were trained as trainers on Human Rights.” The ALRC urges the Committee to request that the government provide information on whether this covered the issue of torture and ill-treatment and what impact this training is having.
2.3. Of the seven individuals who are to compose the “panel of reactor” in the Program Review Analysis (PRA) process – that includes the regional directors of the NAPOLCOM, the DILG, the Civil Service Commission (CSC), the chairman of the Regional Peace and Order Council (RPOC) – the three others are supposed to represent “the private sector/NGOs particularly the Church, academe and youth sector.” However, there is no public information regarding how these people would be able to get involved, or what the qualifications and criteria are that members of NGOs, the church, academia or the youth sector should have before they are permitted to become members of this panel.
3. Article 11:
3.1. Arbitrary interrogation rules: Section 3 and Section 5 (c) of Rule 113 of the Revised Rules of Criminal Procedure respectively stipulate that it is “the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay” and that those arrested in the absence of a warrant “shall be forthwith delivered to the nearest police station or jail.”
3.2. These rules have been repeatedly, deliberately ignored, in particular when the arrested persons are alleged to have been involved in a rebel group, terrorist activities or syndicated and organized crimes. In such cases, these persons are subjected to arbitrary and illegal practices of interrogation and detention, and the investigators employ a range of methods of torture techniques as mentioned in cases studies included in this report. There is no strict compliance to these rules and no guarantees that an arrested person, whether by virtue of an arrest warrant or not, would be turned over to nearest police stations promptly where he would be held.
3.3. One significant problem is that, although the police have primary jurisdiction in cases of arrested persons and have the sole legal jurisdiction concerning conducting investigations and the questioning of the person, they nevertheless allow others to conduct interrogations of persons in their custody, upon request. They have allowed soldiers and other investigating agencies, like the Armed Forces of the Philippines’s (AFP) Military Intelligence Group (MIG); the National Intelligence and Coordinating Agency (NICA); the defunct Presidential Anti-Organized Crime Task Force (PAOCTF); and the Philippine National Police’s intelligence unit, the Regional Intelligence and Investigation Division (RIID), to interrogate persons despite these agencies not having the jurisdiction to do so. These other agencies are known to torture during interrogation.
3.4. The police does not question or challenge arresting officers who are not from the police, for example soldiers, who have held persons in detention for days prior to turning them over to the police station, but simply receive the person into their custody. They do not question where the person had been held, what he has been through and why they failed to turned him over ‘promptly’ to them. They just simply record and accept the person. The police officers receiving this person do not inquire whether this person has been tortured. This practice is in direct contravention of the existing rules on arrest, but remains common.
3.5. Soldiers usurp police powers: The manner in which members of the military carry out arrests, investigate and subsequently detain persons, usurps the power of the police. Only the police and some other investigating agencies, have the power to investigate a person suspected of committing crimes. The military does not have this power, in theory. Soldiers may carry out arrests, but such arrested persons should be turned over to the “proper judicial authorities” under specific provisions found in Article 125 of the Revised Penal Code.
3.6. While arrests without a warrant can also be carried out under certain circumstances (under Rule 113, section 5 of the Revised rules of Criminal Procedure), such as if a person was about to commit, was in the act of committing or had just committed a crime. Members of the military, however, conduct warrant-less arrests without meeting such criteria and detain and subject persons to investigations. Furthermore, they deliberately do not inform the victims of their right to legal counsel. Such circumstances often result in torture or ill-treatment, with impunity.
3.7. Such practices are common in conflict areas controlled by the military or in instances where operations are headed by the military. Under the law, once a person is arrested other than by the police, the officials arresting them should turn them over immediately to the nearest police station. However, soldiers ignore this, especially in remote areas. The failure to turn over the arrested person, for instance those who are captured following an encounter, or those arrested from areas controlled by the military on suspicion of having been involved in a rebel activities, or villagers who simply happen to be where the soldiers are operating, face a high risk of being tortured. They are typically detained incommunicado and there whereabouts are not initially divulged to their families or even the police in such cases.
4. Article 12:
4.1. It is vital to note that one of the great barriers to the prevention and eradication of torture is the lack of investigations into the practice. This results in part from the fact that there is no law criminalizing torture on the one hand, but also because the police and other State agencies and institutions are not independent enough or willing to investigate violations of human rights committed by State agents. This has been seen in the case of the numerous extra-judicial killings that have been well publicised in the country in recent years. Even though there is a law criminalizing murder, there remains a lack of investigations into these killings which are widely accepted as having been committed by State agents or the proxies. To date, no State agent has been brought to justice for the hundreds of extra-judicial killings committed in the country. Similarly, torture allegations and complaints of torture are typically not investigated by the police. The lack of investigations leads to a lack of prosecutions and convictions.
4.2. Poor ‘chain of evidence’ and evidence storage in investigations: police investigators and prosecutors have the obligation to strictly observe the ‘chain of evidence,’ which requires the proper collection and storage of physical evidence they have obtained either from the crime scene or in the course of their investigations. However, the lack of proper storage rooms and the poor observance by police investigators of these procedures has undermined and put at risk the quality and safety of the evidence for use in court, including cases concerning allegations of torture.
4.3. For instance, Department of Justice (DoJ) Department Circular No. 61, on the Rules on Inquest, sections 5 and 16, oblige prosecutors to require that the police “submit the required evidence” when the documents they presented are not complete. Furthermore, the prosecutor’s presence is required at the crime scene “wherever a dead body is found and there is reason to believe that the death resulted from foul play, or from the unlawful acts.” However, in the exercise of their duties, neither the police nor prosecutors strictly observe these rules.
4.4. For instance, prosecutors depend heavily on the documents and evidence that police investigators providing to them in evaluating the merits of a case. Although they have the authority to require the police to submit further evidence to them, this is rarely done. Therefore, if the manner in which the police investigates the case is poor, it is likely to be dismissed.
4.5. Furthermore, most local police stations do not have secure and proper storage rooms where evidence collected during investigations can be safely keep and stored. Evidence such as illegal drugs and marked money used during entrapment operations, have been stolen following a break-in. Police investigators do not take the ‘chain of evidence’ requirement and proper evidence storage seriously, because the penalty for failing in this regard tends to be low – either a reprimand or a suspension, depending on the gravity of the case.
4.6. Prosecutors are also required to be present during on-site investigations in cases involving suspicious deaths. However, in practice, only police investigators who have jurisdiction where the dead body is either found and investigators from the Scene of the Crime Operatives (SOCO) are typically present at the scene. Prosecutors are not complying with their supervisory role concerning cases that are subject to inquest proceedings. This failure reduces the possibility of having cases of suspicious deaths resulting from torture, in particularly those attributed to the security forces, independently investigated. In such cases, police investigators would have had the opportunities to destroy and tamper evidence to prevent the prosecution of the members of the military.
4.7. Lack of independence of investigating agencies: other agencies receive complaints involving violations of rights against security forces, but these lack independence and are therefore not effective concerning grave violations such as torture. For example, if an offence is committed by police officers, complaints can be lodged with the PNP Internal Affairs Service (IAS), the PNP Human Rights Office (HRO); and the local offices of the National Police Commissions (NAPOLCOM) and the citizen’s complaint mechanism, the Peoples Law Enforcement Board (PLEB), where the police officers are detailed. All these agencies have the authority to accept and hear cases against any members of the police and other security forces, but lacks independence.
4.8. In most cases filed before the IAS, HRO and the NAPOLCOM, the burden of proof resides heavily and unjustly with the civilian making the complaint. Those hearing and investigating the complaints are often either subordinates or know the persons being accused of torture, and typically do not act in the interest of those making complaints. The officers from the IAS are under the supervision and control of their respective regional commanders. The HRO and its desk officers in police stations are under the supervision and control of the Head of the PNP and local police commanders respectively.
4.9. The citizen’s complaint mechanism, though largely composed of civilians, is crippled by a lack of resources and is undermined due to political interference. Under the PLEB’s guidelines, the board’s composition includes members of the City or Municipal Council, the Association of Barangay (village) Council and three people chosen by the Peace and Order Council (POC). The three representatives from the POC, as required by law, should be a person respected in the community, a member of the Philippine Bar and a school principal. However, in practice, most members from the POC are the appointees of a local chief executive, thus creating the possibility of political influence by the local chief executive in deciding cases, especially since representatives from the POC comprise a majority of the PLEB. For instance, in the cities of General Santos and Davao, none of those who have been chosen by the POC are school principals. The chief executive also determines who is a “person respected in the community,” which typically leads to a person being selected that suits the interests of the chief executive.
4.10. It can therefore be stated without equivocation that there are no independent State agencies able to effectively investigate allegations and complaints of torture in the Philippines at present. In case a law criminalizing torture is passed, as required under the CAT, in the near future, it will also be imperative to address this lacuna without delay, in order to give the law the chance of being implemented effectively. The current structures and compositions of the agencies and bodies that have the authority to receive complaints and investigate cases are clearly not sufficient and their decisions are inevitable influenced, politically or otherwise, to prevent the case from progressing through effective investigation to the prosecution phase in court.
4.11. No adequate protection to complainants and witnesses: Under section 3 of RA 6981, a person can only be admitted into the Witness Protection Programme if the person has “witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority.” However, there is no provision for the interim protection of persons making complaints prior to the filing of the complaint in court and pending endorsement by the prosecutors to the court. Given the delays in this system, a complainant can be exposed for lengthy periods of time to reprisals, which is a serious deterrent for victims of torture wishing to register complaints and seek justice. The investigating agencies have been exploiting the resulting lack of witnesses under Witness Protection, Security and benefit Act (RA 6981) as an excuse to explain the lack of progress in their investigations and the prosecution of cases. There have been proposals to amend RA 6981, but these have not yet been realized.
4.12. Under section 1 of the Memorandum Circular No. 2000-008 of the National Police Commission (NAPOLCOM), the police, in particular the heads of police, can decide for themselves and make available protection for any person who “is under actual threat/s of death.” This could be used as an interim protection mechanism for individuals who are experiencing threats while seeking to make complaints about torture, but this system is not being used and few if any victims are aware of it.
4.13. Compensation not adequate: The compensation clause under the planned legislations which is not yet in force, namely under section 18 of House Bill 5709 and section 14 of the Senate Bill 1978, provides a ceiling of 10,000 pesos as the compensation to be given for torture victims as provided for by RA 7309. This is inadequate and should be reviewed, as provided by section 21 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, because the existing law on compensation is incongruent to the “bodily injury or impairment of physical or mental health as a result of serious crimes” they have suffered. Furthermore, the calculation of the cost of compensation was computed 17 years ago.
4.14. Furthermore, the time requirement and documents which the Department of Justice (DoJ), the implementing agency of this law, stipulate as a requirement for torture victims are difficulty to comply with. Section 5 of RA 7309 strictly requires that applicants for compensation must file their claims “within six (6) months after being released from imprisonment or detention, or from the date the victim suffered damage or injury,… otherwise, he is deemed to have waived the same.” The authorities have been seen to act arbitrarily concerning victims of different violent acts – the DoJ actively provides compensation to victims of heinous acts, such as bomb blast, by searching and finding the victims and their families to process their claims for compensation. However, in cases of torture and illegal detention, the victims are left to process this themselves and are strictly governed by the time limit and documentary requirements which cause them ‘inconvenience’ in contravention of the UN Declaration. The victims are not adequately “informed of their role and the scope, timing and progress of the proceedings” and no “proper assistance to victims throughout the legal process” is made available.
4.15. Arbitrary refusals and delays concerning compensation: Section 3 of RA No. 7309 generally provides compensations for persons “unjustly accused, convicted and imprisoned but subsequently released by virtue of a judgment of acquittal; unjustly detained and released without being charged; victims of arbitrary or illegal detention; victims of violent crimes, or committed with torture, cruelly or barbarity,” but the procedures and burden of proof and documentary requirements discourages applicants.
4.16. For example, in the case of murder of siblings Francisco Bulane, Padilla Bulane and Prumencio Bulane and the wounding of Richard and Rogelio by soldiers in Matanao, Davao del Sur in February 8, 2005, (16) the DoJ’s board of claims were requiring from the victims’ families that belong to an indigenous tribe, marriage certificates from their respective wives before it could process the claims for compensation. This requirement discouraged the claimants from pursuing the claim, as indigenous marriages have had no marriage certificates. The Commission on Human Rights (CHR) in Davao City, which had conducted investigations into the incident recommended that compensation be provided to the victims’ families. However, no compensation has so far been given to date.
4.17. In another case, a man who had been released from detention after having been arrested and subsequently detained by the security forces in Compostela Valley in 1999 has also had his application for compensation refused. In a letter from the DoJ’s Board of Claims the group helping him was informed that he could only qualify for compensation had he been released from a detention center as a result of the court’s order exonerating him from the charges concerning which he had been convicted and detained. In his case, however, although he had been detained for months his release was due to the dismissal of his case at the prosecutor’s level.
4.18. In most cases, the Board of Claims has not been able to resolve the application for claims, either due to stringent requirements and refusal, “within thirty (30) working days after the filing of the application” as required under section 7 of RA No. 7309, even though they have claimed that they “shall adopt an expeditious and inexpensive procedure for the claimants to follow in order to secure their claims under this Act”.
5. Article 15:
5.1. Arrested persons are forced or misled into signing waivers: Under section 2 (d, e) of the RA 7438, it is clearly stipulated that:
(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.
5.2. The police, soldiers and other officers involved in investigations routinely force an arrested person into signing a blank document without properly explaining to them either its content or the purpose of its use. Later they come to know that it was used as a ‘waiver’ to legitimise testimonies they made under duress. Once this waiver document is submitted in court as evidence or proof of an ‘extra judicial confession,’ the burden of proof rests with the victims and their legal counsel to show that the document was improperly obtained, which is difficult to do. This is the case despite the absence of the arrested person’s legal counsel at the time of the signing of the document, which should be necessary for it to be considered admissible in court.
5.3. In many cases, investigating officers make stopping the torture conditional on the victim agreeing to cooperate, for example by signing such a waiver document. They also employ other means of misinforming an arrested person about the document’s use once he/she signs it. The officers subjecting a person to a custodial investigation do not routinely use interpreters for those who cannot understand the language used in the questioning, for example.
5.4. Violence and ill-treatment – the Calibrated Pre-emptive Response: The executive branch of government has in the past unilaterally implemented rules, for example, the ‘Calibrated Pre-emptive Response’ on September 21, 2005, giving powers to the security forces in dealing with protest. When this rule came into force, persons and groups holding peaceful demonstrations were violently attacked. The police justified their actions under the new rules. The Supreme Court (SC) declared the “Calibrated Preemptive Response” rule “null and void” on April 25, 2006. (17)
5.5. A ‘justifiable degree of force’ not defined: the CPR was only possible due to a lack of clarity on the definitions of torture, ill-treatment, and the types of suffering allowed as part of lawful actions, including through the use of force and justifications for its use. A police colonel in General Santos City, Senior Superintendent Alfredo Toroctocon, has defended his men accused of torturing Haron Abubakar Buisan (18) in December 2005, stating that they were using a ‘justifiable degree of force’ in explaining the injuries Haron had suffered while in police custody even though he didn’t resist arrest or pose a threat to the arresting policemen. Toroctocon added that this type of ‘force’ could be applied as part of the Standard Operating Procedure (SOP). There is an obvious need for legislation that clearly distinguish under what circumstances can the use of force be considered just and necessary.
6. Further issues – systematic torture of persons suspected of being rebels or terrorists:
6.1. Any persons accused of being part of or having links with armed rebel groups or terrorist organisations are systematically tortured in the Philippines. Torture is used to force them into admitting any offence they are accused of having committed and to divulge the identities of their accomplices. This occurs to persons accused of being members of the New People’s Army (NPA), the Moro National Liberation Front (MNLF), the Moro Islamic Liberation Front (MILF) and other such groups.
6.2. The police and military prevent any persons accused of being rebels and terrorists from obtaining legal counsel. The law, the Rights of Persons Arrested, Detained or under Custodial Investigation (RA 7438), clearly stipulated the rights of persons under custodial investigation. However, these provisions are systematically and deliberately ignored particularly when the person arrested is accused to have been involved in high profile rebellion cases or acts of terrorism. For these type of persons, it is extremely difficult to have a private conversation with their legal counsel on the case or for their families to visit them at detention centers, to provide them with food and clothes.
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Recommendations
3. Amendments should be made to existing domestic laws, including:
a. Section 2 (e) of RA 7438, to ensure stricter guidelines to evaluate the validity of waivers obtained from a person under duress;
b. Concerning Section 13 of the Ombudsman Act of 1989, in order to avoid lengthy delays, there should be implementing rules and guidelines concerning the definition of the need to ‘act promptly on complaints.’ Furthermore, there should be sanctions or punishments if the involved Ombudsman officers fail to comply with this time requirements;
c. Concerning Section 3, 4, and 5 of Republic Act 7309, those who file claims should not necessarily be persons convicted and subsequently exonerated from charges. Claimants should be allowed to also include person released from detention after their case has been dismissed at the prosecutor’s level. The monetary compensation should be increased and the period in which claims can be filed should be extended. The documentary requirements should also be considered on a case to case basis, with a degree of flexibility being included where reasonable circumstances exist to explain the lack of certain documents, for example marriage certificates from relatives of victims who are indigenous people;
d. Concerning section 3 of the Witness Protection, Security and Benefit Act (RA 6981), potential witnesses or those facing threats in pursuing complaints, should be provided with interim protection, even before their cases are filed in respective courts or investigating bodies. Memorandum Circular No. 2000-008 of the National Police Commission (NAPOLCOM) should also be effectively implemented;
5. An effective and centralized register of detainees must be developed and maintained, including thos persons detained by the various national or local authorities (the Department of Justice (DOJ), which has jurisdiction over jails under the Bureau of Corrections (BuCor); the Department of Interior and Local Government (DILG), which has supervisory power over the Bureau of Jail Management and Penology (BJMP), which has jurisdiction over city and municipal detention facilities; and the provincial governments, which have supervisory jurisdiction over the provincial jails in their respective provinces, even though they are also under BJMP);
6. The Commission on Human Rights (CHR) and its regional offices should ensure that they document cases and provide assistance to torture victims, as provided for in Executive Order 163, section 3, which calls on the CHR to investigate complaints by any party concerning all forms of human rights violations. The CHR should not cite the excuse of ‘contempt of court’ and refuse to document and investigate victims’ complaints.
7. The NAPOLCOM, which has the jurisdiction to promulgate, review and amend the existing operation policies of the PNP, should conduct a thorough review to ensure that the Standard Operating Procedure (SOP), does not justify the excessive use of force by the police.
8. The NAPOLCOM should also review the PNP’s facilities to ensure that they can support an effective investigation and the storage of physical evidence relating to complaints of torture, including dead bodies from cases of suspicious death.
9. There should be more forensic pathologists, psychiatrists and other experts as well as public institutions with expertise in responding to the needs for treatment and rehabilitation of torture victims.
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Footnotes:
1 Please see further case details in Annex I, Case No. 24
2 (CCPR/C/92/D/1466/2006)
3 Please see further case details in Annex I, Case No. 21
4 Please see further case details in Annex I, Case No. 23
5 AHRC-UAU-064-2008: A man is continuously held for six years without trial
6 AHRC Urgent Appeals; UP-195-2006: Arrested eight workers released; false charges remain
7 Supreme Court, G.R. No. 181747; September 8, 2008
8 Bureau of Corrections (BuCor) mandate and functions
9 Section 63, Chapter V, Department of the Interior and Local Government Act of 1990 (RA 6975)
10 Please see further case details in Annex I, Case No. 12
11 AHRC Urgent Appeals; UP-151-2006: Ombudsman’s failure to resolve cases of murder, extra-judicial killings and torture, prevents police and military from being charged
12 AHRC Urgent Appeals; UP-01-2006: Two more inmates died at the General Santos City Reformatory Centre in Mindanao
13 AHRC Urgent Appeals; UA-242-2005: PHILIPPINES: Suspicious death of an 18-year-old inmate in General Santos City, Mindanao
14 AHRC-UAU-064-2008: A man is continuously held for six years without trial
15 Please see further case details in Annex I, Case No. 3
16 AHRC Urgent Appeals: FA-06-2005: Three people killed and three others wounded by military forces in Matanao, Davao del Sur, Mindanao
17 Supreme Court, G.R. No. 169848; April 25, 2006
18 Please see further case details in Annex I, Case No. 13
