WE ARE 1 YEAR OLD

It’s been a year since we were born!  JOIN US IN OUR First Anniversary on September 20, 2008 at 5:00 pm at NewsDesk, No.8 Scout Madriñan corner Scout Tobias, South Triangle, Quezon City. Dinner will be served at 7:00 p.m.

There will be games, singing and door prizes in between.

For more information, please get in touch with the NUPL secretariat (Rea) at Telephone no. 920 .6660 or email address nupl2007@gmail.com or mobile number 0917.8870.776

TORTURE LEGISLATION IN THE PHILIPPINES:

The torturous Road Ahead

Speech delivered by Atty. Neri Javier Colmenares

at the Training on the Istanbul Protocol

January 19-22, 2008, Manila. Philippines

The Philippines is a state party to almost all human rights and IHL related treaties. As early as June 17, 1925 the Philippines signed the “Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare”. It also ratified the Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929) and the other Geneva Conventions. The treaties it signed ranged from well known covenants such as the International Covenant for Civil and Political Rights [ICCPR] to relatively less known agreements such as the Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention, 13 October 1995)

Despite this expressed showing of commitment to human rights, the Philippine human rights condition is one of the worst in the world—beset by extra judicial killings, enforced disappearance and other forms of human rights abuses and the impunity with which these are committed.

One of the rights routinely assaulted in the Philippines is the right against torture, despite the Philippine ratification of the Convention against Torture which carries the obligation under Art. 2 not only to investigate and prosecute torture but also to pass legislation penalizing torture.

Is torture a crime or a prohibited act in the Philippines ?

It is not a crime in the Philippines in the sense that no bill defining and penalizing torture in general has been passed by the Philippine legislature ever. Despite many attempts the various torture bills filed in Congress founder in the sea of apathy, if not outright resistance, from the government itself.

Without denigrating the importance of the passage of a law on torture, however, the more pressing problem in the Philippines today is the failure of the government to go after the perpetrators and hold them accountable under existing penal laws. This state of impunity fuels the escalating human rights violations in the country. Considering that the victims, human rights advocates and the public in general including the international community have charged state security forces as responsible for the extra-judicial killings, enforced disappearance, torture and other human rights violations, the lack of political will on the part of government to fulfill its aut judicare obligation to prosecute is the decisive impediment to the battle against impunity. This is the main problem faced by human rights lawyers and victims alike in the Philippine judicial setting in the investigation and prosecution of the perpetrators of torture.

It is not, however, totally accurate to state that torture is not a crime in the Philippines because it is a prohibited act under the Constitution and various Philippine laws.

Constitutional Prohibition

All Philippine Constitutions, even the Marcos martial law Constitution, contain their respective bill of rights. These Bills of Rights initially did not expressly prohibit torture although the rights contained therein would, by implication, be deemed to include the freedom from being subjected to cruel and degrading punishment.

The Malolos Constitution of 1899, which promulgated the first Bill of Rights in Asia, contained 32 provisions outlawing human rights abuses but did not expressly prohibit torture although it carried the general prohibition against deprivation of rights under Article 16, to wit:

Article 16 No one shall be temporarily or permanently deprived of rights or disturbed in his enjoyment thereof, except by virtue of judicial sentence. The officials who, under any pretext whatsoever, should violate this provision, shall be personally liable for damages caused’.

The notable provision expressly making public officials accountable is further firmed up by the forward looking provision prohibiting superior orders as a defense under Art. 29:

Art. 29 Prior authorization to prosecute a public official in the ordinary courts is not necessary, whatever may be the crime committed. A superior order shall not exempt a public official from liability in cases which constitute apparent and clear violations of constitutional precepts. In others, the agents of the law shall only be exempted if they did not exercise the authority.”

The 1935 Constitution, copied from the US Bill of Rights, provided for the general prohibition against ‘cruel and unusual punishment under Art. IV, Section, to wit:

(18) No person shall be compelled to be a witness against himself.

(19) Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted.

It was the 1973 Constitution, however, which passed a constitutional prohibition on the use of “force, violence, threat or intimidation” under Art. IV:

“Section 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

Section 21. Excessive fines shall not be imposed nor cruel or unusual punishment inflicted.”

The 1987 Constitution drafted after the brutal experience that was martial law, contained a more elaborate prohibition of torture under Art. III, Section 18:

1. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

2. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

3. The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

The 1987 Constitution did not only prohibit torture but it also aimed for its prevention by prohibiting secret detention places which are used in the conduct of torture. Other than providing for sanctions it also provided for compensation and rehabilitation of torture victims and their families.

Supreme Court Jurisprudence

The Supreme Court, despite the fact that no express definition of torture exist either in the early Constitution or in statutes, has recognized the abhorrent nature of torture. As early as 1905, the Supreme Court has ruled on a torture case in United States vs. Lozada [GR 1751, February 23, 1905] when it declared that “(T)he confession extorted from the defendant by means of force and violence is null and void, and can not be used as evidence against him on trial x x x .“

The rule is meant to take away the “incentive to torture”. By prohibiting the use as evidence of confession taken under duress. Involuntary confessions are uniformly held inadmissible as evidence — by some courts on the ground that a confession so obtained is unreliable, and by some on the ground of humanitarian principles which abhor all forms of torture or unfairness towards the accused in criminal proceedings [Aquino vs. Enrile]. Note however that the Court treated the issue from the perspective of a clinical rule on evidence rather than as an abhorrent morally and legally proscribed human rights crime.

This was confirmed, this time with a statement on the abhorrent nature of torture [as a “blot” on civilization] in the case of People vs. Nishishima [57 Phil. 26, 1932] where the oft-repeated quote from Justice Butte was first enunciated:

“Apart from the fact that involuntary confessions will be declared incompetent and are therefore utterly futile, it is high time to put a stop to these (third degree) practices which are a blot on our Philippine civilization.”

This rule was, however, abandoned in 1953 in the case of People vs. Delos Santos, et al.[G.R. No. L-4880] citing the rule in Moncado vs. People’s Court, [80 Phil. 1], and followed in the case of People vs. Villanueva, et al. (G.R. No. L-7472, January 31, 1956), to the effect that:

“[A] confession to be repudiated, must not only be proved to have been obtained by force or violence or intimidation, but also that it is false or untrue, for the law rejects the confession when by force or violence, the accused is compelled against his will to tell a falsehood, not when by such force and violence is compelled to tell the truth.”

The return of the “incentive to torture rule” was promulgated within the context of a growing rebellion confronting the Philippine Government in the 50s.

The dangerous ‘incentive’ rule was, however, overruled when the Supreme Court ruled against then Justice Secretary Jose Diokno, who will later become a staunched human rights advocate, in the case of Stonehill vs. Diokno (20 SCRA 383, June 19, 1963), where it declared that “illegally obtained evidence” is inadmissible in court.

The clearest rebuff of the use of torture, however, was in People vs. Urro (44 SCRA 473, April 27, 1972), where former Chief Justice Claudio Teehankee declared that

“Involuntary or coerced confessions obtained by force or intimidation are null and void and are abhorred by law which proscribes the use of such cruel and inhuman methods to secure a confession. A coerced confession stands discredited in the eyes of the law and is as a thing that never existed. The defense need not prove that its contents are false.

Responsibility of Commanders

As early as 1907, the Supreme Court also recognized the direct responsibility of commanding officers, although it imposed the strict requirement of “presence” in the case of US vs. William Bolton [GR L-3479, July 29, 1907] when it declared that:

An officer of the Philippine Constabulary in command of persons who subject another to maltreatment, although he does not himself take a material part in the unlawful proceeding yet is present at the time, is criminally responsible for the consequences of the act and is punishable under section 3 of Act No. 619.

This was reiterated in the “failure to take action rule” mentioned in the case of People vs. Rafael Lacson [G.R. No. L-8188. February 13, 1961] which ruled that :

Lacson’s failure to take action against, order the prosecution of, or even berate his subordinates for their outlawry, confirms the view that it was he (Lacson) who ordered the torture and manhandling of the victim resulting to his death. Consequently, Lacson must be convicted as a co-principal by induction in the murder of Padilla.

In view of the foregoing, the Court is of the opinion that the accused-appellants Rafael Lacson, x x x and Vicente Hijar have been shown guilty, beyond reasonable doubt, of the torture and murder of the late Moises Padilla, Rafael Lacson as principal by induction and others as conspirators and direct participants therein.

It must be stressed, however, that despite the use of the phrase “torture and murder” Lacson was convicted of murder since torture is not a distinct crime in the Philippine legal system.

The Court also found the opportunity to provide for the civil liability of torturers and their commanders in the famous landmark case of another Lacson in Aberca vs. Ver [G.R. No. L-69866, April 15, 1988.] filed against Gen. Fabian Ver, then Lt. Col. Panfilo Lacson, Major Rodolfo Aguinaldo, Col. Galileo Kintanar, then Lt. Pedro Tango and Col. Rolando Abadilla. The Court declared that the concept of respondeat superior does not apply in the case of military officers for acts by their subordinates, but still declared that the superior officers may be liable directly as tortfeasors for violating the rights of others under Article 32 of the Civil Code:

“Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.”

The Court not only found the ‘torturers’ liable but also disqualified in certain capacities as stated in the case of Jose Ma. Sison et al vs. Juan Ponce Enrile [G.R. No. L-49579. January 15, 1981] where the torturer ended up as a judge in the case against the torture victim:

“The law member of Military Commission No. 1 is disqualified to participate in the trial of the petitioners because he violated the constitutional rights of the accused to due process by extracting from some of them confessions through torture. He adversely prejudged the defense of confession extorted through torture.”

Strangely, in all these mention of torture in the Constitution, in Supreme Court decisions and even in the various statutes themselves, there exists no definition of the said crime. The Supreme Court forwarded the opinion in Benigno Aquino et al vs. Juan Ponce Enrile et al [G.R. No. L-35546. September 17, 1974.] that “ It must be noted that all these Philippine cases refer to coerced confessions, whether the coercion was physical, mental and/or emotional”. Despite this statement, however, it is highly questionable if the Court would have similarly ruled if the ‘torture’ was mental pressure.

Laws

Various laws indeed prohibit torture sometime equating the same with sanitized word “maltreatment” or the amorphous concept of “cruel, unjust or unusual punishment” [amorphous because it does not explain the relation between an “unusual” or even unjust punishment to legal notion torture]. The Revised Penal Code is littered with provisions on physical injuries, coercion and other similar felonies, although many would agree, it does not quite describe the heinousness of torture as a human rights violation.

The following laws mention torture:

1. Letter of Instruction 621 [October 27, 1977] granting the military inquest officer the duty to:

“To determine if maltreatment or other forms of torture have been committed on the person arrested, and to institute the necessary charges/actions if there be so, immediately.”

1. Proclamation 1914 [October 16, 1979] promulgated by then Pres. Ferdinand Marcos, which ironically, specifically mentions the states obligation to prohibit torture:

“The Government of the Republic of the Philippines hereby declares its intention:

A) To comply with the Declaration on the Protection of all Persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment (General Assembly Resolution 3452 (XXX), and

B) To implement, through legislation and other effective measures, the provisions of the said declaration.”

1. Executive Order No. 9 [ March 18, 1986] issued by then Pres. Corazon Aquino creating the Presidential Committee on Human Rights and giving it the function under Section 4 to:

“Investigate complaints it may receive, cases known to it or to its members, and such cases as the President may, from time to time, assign to it, of unexplained or forced disappearances, extra-judicial killings (salvaging), massacres, torture, hamletting, food blockages and other violations of human rights, past or present, committed by officers or agents of the national government or persons acting in their place or stead or under their orders, express or implied.”

It must be noted that this government pronouncement was the first to use the term “extra-judicial killings and ‘forced disappearance’.

1. Executive Order No. 27 [July 4, 1986] titled “Education to Maximize respect for Human Rights” mandating the human rights education in schools and government agencies and a declaration punishing the crime of torture:

“b) Torture, other cruel and degrading treatment or punishment, unexplained or forced disappearances and extra-legal executions (salvaging) are crimes, punishable by Philippine laws under any and all circumstances.”

1. Executive Order No. 62 [November 7, 1986] increasing the penalty for maltreatment of prisoners under Article 235 of the Revised Penal Code

“Art. 235. Maltreatment of prisoners. - The penalty of prision correccional in its medium period to prision mayor in its minimum period, in addition to his 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 punishments not authorized by the regulations, or by inflicting such punishments in a cruel and humiliating manner.

If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the offender shall be punished by prision mayor in its minimum period, temporary absolute disqualification and a fine not exceeding six thousand (P6,000.00) pesos, in addition to his liability for the physical injuries or damage caused.”

1. The Administrative Order No. 370 issued by then Pres. Fidel Ramos on December 10, 1997 which created the Inter-Agency Coordinating Committee on Human Rights mandated to prepare reports for UN Human Rights bodies:

“(a) respond to urgent requests for information from UN human rights bodies, domestic and international non-government organizations and private individuals concerning human rights violations allegedly perpetrated upon individuals or groups in the country; and

(b)    prepare the Philippine periodic reports which are submitted to UN human rights bodies in accordance with international human rights covenants and, after consultations with non-government organizations, sectoral groups and other private sector institutions, to submit these reports in time for the treaty-required due dates”

1. Republic Act 7438 on the rights of the accused

1. Republic Act 7610 [June 17, 1992] expressly penalizing the torture of a child

1. Republic Act 7659 [December 13, 1993] penalizing with death kidnapping with ‘torture’. This law was subsequently repealed.

There are many other laws that mention torture such as RA 8295 which considers the use of torture for electoral reasons as an election offense, RA 9344 on Juvenile Justice and RA 7309 which grants compensation to victims of violent crime and torture. RA 6766 the law creating the Cordillera Autonomous Region [October 23, 1989] even contains a provision which commands the regional government to take measures against torture, illegal detention and “extra-judicial executions”. There is no lacuna in the Philippine legal system of laws that prohibit torture. It just lacks laws that not only specifically defines the crime and penalizes it, but also comprehends the heinous nature of the act.

A Statute defining torture

It is not totally correct, however, to claim that no law actually defines and penalizes torture. There is a law that does define torture. Ironically, it is a law deemed anathema to human rights—the Human Security Act otherwise known as the Anti-Terrorism Law.

Section 24 of the Human Security Act provides that :

Sec. 24. No Torture or Coercion in Investigation and Interrogation. - No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral[1], or psychological pressure, on the detained person, which shall vitiate his freewill, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and usable as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.

The law provides for the additional element qualifying the use of torture, that it should “vitiate free will”, an element not found in various definition of the concept. This is actually a deviation[2], which could be fatally detrimental to the victim, since the perpetrators who “merely” use mental or psychological torture may put up the defense that such did not vitiate free will. Generally, the more predominant notion of torture in the Philippines is limited to physical pain or suffering. Mental torture is generally regarded as a ‘harmless’ routine treatment of persons arrested or undergoing custodial investigation.

Torture is penalized under Section 25 thus:

Sec. 25. Penalty for Threat, Intimidation, Coercion, or Torture in the Investigation and Interrogation of a Detained Person. - Any person or persons who use threat, intimidation, or coercion, or who inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free-will of a charged or suspected person under investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of twelve (12) years and one day to twenty (20) years of imprisonment.

The problem with this provision is it is limited only to cases where the victim is suspected or charged under the Human Security Act. If the victim is not actually charged under the Act then Sec. 25 will be of little use since the perpetrator may easily claim that the victim was ‘suspected’ of another crime.

STATE OF PROPOSED LEGISLATION

There are bills currently pending in both the Senate and the House of Representatives. Both the House and Senate bills have similarities in many aspects notably provisions on definition, compensation, liability of the commanding officer, penalties including the novel assertion of the right to medical examinations which all apparently stemmed from House Bill 3021 filed in the House of Representatives during the 13^th Congress. The other similar provisions among the bills on refouler, rehabilitation, the right against torture as non derogable, education, and witness protection again comes from the House version through its Committee Report 1998 which passed third reading but failed to pass into law. The passage in third reading of the torture bill in the 13^th Congress was the closest that a torture bill came to being passed. It is unfortunate that the Senate failed to pass a similar bill. It is noteworthy that the Chairman of the Senate Human Rights Committee in the 13^th Congress was Sen. Juan Ponce Enrile who was the Minister for Defense of Pres. Ferdinand Marcos during martial law.

Although some provisions in these pending bills need improvement, the fact that they have many similar provisions facilitates the possible passage of the bills into law. The pending bills[3] in the House of Representatives are :

(i) HB No. 327 authored by Rep. Edcel Lagman

(ii) HB No. 2619 co-authored by Representatives Satur Ocampo, Teddy Casino, Crispin Beltran, Liza Maza, Luz Ilagan, Raul del Mar, Simeon Datumanong, Eric Singson, Arnulfo Puentebella, Amelita Villarosa, Arthur Defensor, Neptali Gonzalez, Ronaldo Zamora, Darlene Antonino, Luis Villafuerte, Matias Defensor, Carlos Padilla [for purposes of brevity the Bill is co-authored by 139 Representatives from both administration and opposition including the leaders of the Minority and the Majority including the Chairman of the Justice Committee to which the Bills were referred]

(iii) HB No. 1053 authored by Rep. Ana Baraquel and

(iv) HB No. 2863 authored by Rep. Salvador Escudero III

Considering that majority of the members of the House have already signed the bills in HB 2619 as co-authors it is safe to expect that the House will pass the anti-torture bill soon, provided that the Justice Committee will speed up the process. It is encouraging that Rep. Matias Defensor, the Chairman of the House Justice Committee was convinced to co-author HB 2619. The more important consideration, however, is whether the Senate will again fail to pass its own version of the bill, especially since Sen. Juan Ponce Enrile is a powerful member of that body.

The pending Senate Bills [available through the Senate website] are:

(i) SB No. 1337 authored by Sen. Miriam Santiago

(ii) SB No. 39 by Sen. Rodolfo Biazon

(iii) SB No. 1306 by Sen. Francis Escudero and

(iv) SB No. 7 by Sen. Jinggoy Estrada,

All these Senate Bills were recently consolidated in SB No. 1978 which is probably the most advanced and comprehensive version of all the bills, co-authored by the above senators and Sen. Juan Ponce Enrile.

Contents of SB 1978

Although SB 1978 is the more comprehensive version of all the bills it needs improvement and refinement. The following are its salient features:

Definition

Torture is defined under Section 3 of SB 1978, to wit:

SEC. 3. Torture, When Committed. - “Torture” shall be deemed ‘committed when an act by which severe pain or suffering, whether physical, psychological, mental or pharmacological, is intentionally inflicted on a person for such purposes as: obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind. And that such pain or suffering is inflicted by or is made at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not include pain or suffering arising only from inherent or incidental to lawful sanctions.

This definition hews closely with the definition under the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. It adds, however, the concept of ‘pharmacological’ torture which does not detract from the essence of the crime but merely expands the possible acts that may result into culpability. It is in fact more categorical than Article 7 of the ICCPR which merely states that “no one shall be subject without his free consent to medical or scientific experimentation”.

Rather than separate the phrase “and that such pain or suffering is inflicted by or is made at the instigation x x x “ from the main definition the Bill should have strictly followed the Convention definition considering that the Philippines has ratified the same.

Although the last sentence on lawful sanction is an internationally accepted qualifier, that provision may be used by the perpetrators considering that the minimum standards for the treatment of prisoners here is so dismally distant from the international standards. Torturing victims by putting them in congested jails to deprive them of sleep or exposing the victims to physical threats from other detainees are ‘normal’ conditions. Of course, this provision will be used by the State should it re-impose the death penalty in the future.

Rather than enumerating the acts consisting of physical torture, it would have been better for the bill to have limited the examples to mental [or pharmacological] torture to highlight the same and break the trivial consideration generally accorded to non-physical pain. Human rights lawyers must ensure that the court comprehends that the list are mere examples.

Right to Medical Attention

Sec. 9 provides for what may be considered a ‘revolutionary’ legal imposition in the Philippine setting—the right to medical attention and the right to be informed of such right. The Bill must provide for a corresponding sanction for the failure of the authorities to recognize this right, including a reiteration of sanction against the medical practitioner who made a patently false certification.

Section 9 reads:

SEC. 9. Right to Physical, Medical and Psychological Examination. -

Every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand physical, pharmacological and psychological examinations and/ or medical treatment by an independent and competent doctor or specialist or expert of his/her own choice before and after arrest, detention or investigation, which shall be conducted outside the influence of the police or security forces. If such person cannot afford the services of his/her own doctor or specialist or expert, he/she shall be provided by the State with a competent and independent doctor. If the person arrested is a female, she shall be provided with a female doctor.

The medical report or any report pertinent for the above examinations and/or treatment, if the person so arrested, detained or investigated upon availed of said right, shall include in detail the patient’s medical history and the findings of the physician concerned with his/her signature affixed, and shall be attached to the report on such arrest, detention or investigation. Otherwise, said report shall be deemed null and void and of no legal effect.

Following applicable protocol agreed upon by agencies, medical reports or any report equivalent thereto shall, among others, include the following:

(1)‘The name, age and address of the patient or victim;

(2) The name and address of the nearest kin of the patient or victim;

(3)The name and address of the person who brought the patient or victim for physical, pharmacological and psychological examination, and/or medical treatment

(4) The nature and probable cause of the patient or victim’s injury, pain and disease and/or trauma;

(5) The approximate time and date when the injury, pain, diseases or trauma were sustained

(7) The place where the injury, pain, disease and/or trauma was/were sustained;

(8) The time, date and nature of treatment necessary; and the diagnosis, the prognosis and/or disposition of the patient or victim.

A person can waive his/her right under this section only in writing

and with the assistance of an independent and competent counsel, preferably of his own choice.

Command Responsibility

Section 10 of the bill provides that any officer who orders or is present during the torture is liable as principal. Otherwise he or she is liable as accessory:

The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as accessory to the crime of torture for any act or omission, or negligence committed by him/her that shall have led, assisted or abetted the commission of torture by his or her subordinates.

This provision will add teeth to the torture law if passed. However, it is also best to include the legal notion of command responsibility in cases not mentioned under Section 5 by penalizing superiors who “should have known’ that their subordinate committed, was committing or about to commit torture and the superior “ failed to take all the necessary and reasonable measures to prevent or repress such acts, or submit the matter to competent authorities for investigation and prosecution.”

The most effective remedy against torture is prevention. Putting in mechanisms such as command responsibility may contribute in preventing the same.

Torture as a separate crime

Another important innovation in the bill is provided under Section 12:

SEC.12. Torture as a Separate and Independent Crime. - Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by law.

This characterizes torture as a heinous crime distinct from the physical injuries provided under the Revised Penal Code. As declared by HRE “what makes torture heinous is not the heart of the torturer but that it was committed by a member of the state apparatus”. Furthermore, it will still provide the victims with other remedies under the law should the torture trial not prosper.

Other important Provisions

Section 4 contains a provision recognized under international law—that the right against torture is non derogable and can never be violated in any circumstances. It is best to expressly include the same in the Bill since the ‘ticking time bomb’ argument is currently being used in the ‘war against terror’.

The requirement under Section 5 of a listing of detention places is well intentioned although this does not necessarily eliminate the possibility that state security forces will maintain safe houses and not list the same, considering that the list is “made available to the public”.. What is more important is the sanction that will be imposed on officers for maintaining ‘secret detention places, solitary confinement, incommunicado and other similar forms of detention”.

The provisions on education, non refouler, compensation, and rehabilitation are all important provisions that benefits victims of torture. Although compensation, education and even rehabilitation have long been enshrined in many laws providing the same under the bill adds one more accountability mechanism on the part of government.

Conclusion

The need for torture law cannot be overstated. The absence of a torture law is a substantive impediment to the prosecution of the perpetrators. The passage of the law would certainly help locate the onus of the responsibility for the protection of the right.

There must, however, be creative use of the existing laws and rules in the prevention of torture. Using the Writ of Amparo in enforced disappearance cases would certainly impact on the use of torture considering the speed with which amparo cases must be resolved and the interim rules on production and inspection.

The need however for the efficient and effective investigation and documentation of torture, the symbiotic relationship among doctors and lawyers in the addressing torture cases and the improvement in getting and preserving the evidence in these cases become more important in efforts to counter the recalcitrance of the state to eliminate torture and prosecute its perpetrators—merely because they are public officials. As long as the Philippine government, [who does not lack the political will to go after crimes committed by private individuals and groups], persist in covering up the crime of torture and lacks the will to prosecute state agents who commit the same, the burden of putting a stop to this most brutal crime lies on the human rights advocates, including human rights lawyers and doctors, and the victims themselves.