Wednesday, June 24, 2009

UN Committee Against Torture Releases Recommendations; Human Rights Group Urges RP To Abide

A Statement by the Asian Human Rights Commission on the occasion of the International Day in Support of Victims of Torture.

PHILIPPINES: Government must implement CAT Committee’s recommendations as a matter of priority

On 14 May 2009, the United Nation’s Committee Against Torture released its recommendations (CAT/C/PHL/CO2) following the conclusion of its periodic review of the Philippines on its implementation of the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

The Philippines is a State party to the Convention since its ratification on June 1986.

The Committee’s recommendations are also shared by the Asian Human Rights Commission (AHRC), who, in its effort to assist the Committee in the process of its review of the Philippines’ record in the implementation of the CAT Convention, also submitted an alternative report through its sister organisation, the Asian Legal Resource Center (ALRC). The Committee’s observation, nevertheless, has expressed, at least in part, the ALRC’s analysis of the problem.

The AHRC and the ALRC therefore urges the Philippine government to consider as their priority the following:

On access to lawyers, judicial custody of a detainee
In most cases, once a person is arrested and subsequently detained, the policemen or the military that arrested them, are deliberately preventing them from having contact with lawyers and their family members; and they are subjected to custodial investigation without the presence or assistance of legal counsel. A person’s right to have access to lawyers and being turned over to judicial authority is envisaged in Rights of Persons Arrested, Detained or under Custodial Investigation (RA 7438) and article 125 of the Revised Penal Code of the Philippines.

The present practice in courts in the Philippines is that the burden to prove that the arrested person’s testimony and confession taken under duress is a product of torture rests upon the torture victims and not on the prosecution panel. Thus, by failing to ensure, by way of strictly implementing the provisions of these laws, torture victims have already been, at the early stage, at risk of being prosecuted for testimonial evidence taken as a result of torture. It also effectively denies any possibilities of redress and remedies for these victims.

"Lack of investigations into cases of torture"

The lack of or ‘seldom investigation and prosecution’ of torture committed by law enforcement agents and soldiers demonstrates that the complaint mechanism that exists today does not encouraged victims or complainants to file complaints; and that the fear and threats are very real once a person comes forward to complain. There, the number or statistics of torture cases that come to notice are seen, at least on the part of the government, as isolated cases. However, these statistics alone do not speak to the severity of the problem.

The government must admit that torture reported in police stations, on complaints filed with the Commission on Human Rights (CHR), cases documented by the NGOs and cases to which their attention had been called to intervene, are just the tip of the iceberg and speaks of the extent of the problem arrested persons, regardless of whether their cases are politically motivated or an ordinary crime, have to confront on a daily basis.

When Eduardo Ermita, secretary to the executive branch, questioned the 1,016 cases of torture that NGOs reported to the Committee, the lack of government knowledge into these cases, illustrates the deep distrust and lack of confidence amongst that torture victims have in filing formal complaints with the government agencies responsible for conducting investigations. In the Philippines, torture victims tend to seek assistance and help from NGOs in seeking redress and remedies; thus, it is nothing new that often NGOs have more access to the documentation than the government.

Thus, the government should refrain from immediately questioning the credibility and merits of the cases and undermining the credibility of NGOs, but rather they should make efforts to look into these cases.

"Abolish de facto detention facilities"

The police and soldiers must also abolish the practice of arbitrarily detaining persons whom they arrested in the detention facilities or places that are not legally registered according to the law. The lack of detention facilities or the inability to turn over the custody of an arrested person to proper detention centres and jails cannot be used as an excuse to justify detention of arrested persons in camps, safe houses and other places, wherein they would be subjected to interrogation.

The continued practice and maintenance of these places is putting torture victims at risk, not only of being tortured, but also of being disappeared or extra judicially killed. The lack of records or traces of the person’s detention would mean that it is not possible for any investigating authorities, including the CHR, even if they have Constitutional rights or a mandate to conduct unannounced visits to places of detention, to determine the whereabouts and condition of arrested persons. Therefore, unless these practice and these places are abolished, there is no guarantee that once a person is arrested they are taken to detention center or jails where their relatives or lawyers could see them.

"Repeal law espousing torture"

As the Committee has also mentioned, the provision contained in the Human Security Act of 2007, which allows prolonged detention of suspects for 72 hours, even without arrest orders is of serious concern. Given the continuing practice of the police and soldiers on numerous occasions making arrests without court orders, detention of arrested persons in not legally recognized detention facilities and the use of torture in custodial investigations aggravates the practice of torture.

There should be a thorough review on this law and it should be repealed according to human rights norms and standards. The AHRC is deeply concerned by the abuse in interpreting this law by way of filing charges of terror acts against persons, including activists. This is despite of the fact that the basis on which the crime should have been committed under this act does not exist. One case is the arbitrary arrest and subsequent filing of terrorism charges against three activists campaigning against the renewed operation of a nuclear plant in the province of Bataan.

Although the law provides that an act of terror that a person is alleged to have committed should have a component of ‘widespread panic’ and demands are made of the government the present practice among the prosecutors and policemen investigating cases of this nature does not satisfy the requirements for taking a case to court.

Also, the declaration of an emergency rule, in particular in a Proclamation No. 1 Series of 2009 that took effect in 31 March 2009 in Sulu province, should also be declared unconstitutional by the Supreme Court (SC) where a petition challenging this declaration is presently pending. The government should also ensure that this rule, if it continues to be imposed, be lifted without further delay. This rule also had provisions which tolerate the police and soldiers in conducting illegal searches, arbitrary arrest, arbitrary detention and to subject arrested persons to investigation in absence of lawyers.

"Strengthen the law on Witness Protection"

The AHRC has in the past raised deep concerns by the ineffective implementation of the Witness Protection, Security and Benefit Act (RA 6981). It appears though that despite repeated appeals to have this law amended in order to strengthen it there has not been substantial progress—the draft bill strengthening this law has not been enacted. The Department of Justice (DoJ), who is the implementing agency of this programme must ensure that it take proactive measures to implement this law.

As already mentioned, the failure to ensure that complainants are encourage in filing complaints of torture, one of which is to ensure that their concerns of threats, fear of reprisal from the perpetrators and of being subjected to intimidation, have also resulted in the numerous complaints not being reported for investigation, and which subsequently, are not filed in court for prosecution. Thus, the lack of an effective and well functioning witness protection mechanism is crucial to ensure the possibility of effective prosecution of cases.

"Excessive court delays"

The case of the Abadilla Five speaks to the endemic problem that torture victims and complainants have to face in seeking legal remedies and redress. In this case, 13 years after their complaint of torture was filed, none of the policemen and other persons involved in torturing them have been held to account. The failure of the Office of the Ombudsman for Military and Other Law Enforcement Offices (MOLEO) should provide an explanation to why they have continued to fail in concluding this case.

By failing to conclude this case, it continues to prevent other torture victims and complainants from taking legal remedies and obtaining redress in their cases. If the MOLEO fails to conclude this decade-old case there would also be no assurance at all that new cases relating to torture would be acted upon promptly.

"Ensure legislation of a domestic law on torture promptly"

Finally, the AHRC once again calls upon the government to ensure that the present bill on torture, pending before the Senate and the House of Representatives, be enacted without further delay according to the provision of the CAT. This is crucial, as an initial step to ensure that torture victims would have the possibilities of obtaining remedies and redress to the violations committed upon them.

The AHRC is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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