Set My People Free
Volume 20 Number 4
Friday, 06 November 2009 13:51

vol20no4Freedom from Torture by Jerbert M. Briola

Human rights violations are spreading throughout the country where cases of torture, illegal detention and extra-judicial execution have begun to pile up. It has taken an alarming level since Gloria Macapagal-Arroyo took power in 2001. The human rights situation today is cast against the background of more threatening concerns generated by “Oplan Bantay Laya”, (Operation Freedom) GMA’s master plan on delivering the final blow to end the insurgency, as well as that of her administration's penchant for attacking civil liberties and violating human rights.

In the country it seems that now everywhere before you are a sight of repression and a culture of impunity thrives. The occasion when the Philippines was elected as a member of the United Nations Human Rights Council (UN HRC) speaks of a terrible irony we have in our midst. We see reminders of the kind of democracy we have which the government is bound to perpetuate - a democracy that tolerates the practice of torture, a democracy that breeds injustice.

On April 19 of this year, before the Philippines became a member of the UN HRC, the Philippine government proudly pledged to “focus on bridging national and international human rights goals, standards”. More than this, it also assured to “seek to strengthen domestic support for the ratification of the Optional Protocol to the Convention Against Torture (CAT).” While the Philippines is a party to this Convention and has the obligation to eliminate torture, much remains to be done to eradicate acts of torture.

Thirty years may have passed since Martial Law was imposed yet the country still sees the sight of civilians assaulted, hauled off in military trucks, with their hands tied behind their backs and detained in military camps. More than twenty years after Marcos was overthrown, human rights organizations, victims of torture and their relatives continue their struggle for justice and to see the torturers land in jail. And torturers continue to inflict physical agony and mental anguish on countless victims- and to get away with it. To date the perpetrators of torture, of such heinous crimes against our common humanity remain scot-free. Free to inflict harm on anyone they deem as enemies of the state or criminals fit to undergo inhuman punishment.

To this very day the civil case of Aberca et al against Ver+ is gathering dust at the Court of Appeals - 11 long years to be exact. Thus, it has been 23 years now since the case was filed. Besides Ver, named defen­dants were Lt. Col. Panfilo Lacson, Colonels Fidel Singson, Rolando Abadilla and others. Lacson is now a senator. Ver, Abadilla and Aguinaldo have since died. All the defendants were members of Task Force Makabansa, a composite group from military intelligence units during Martial Law.*

The Philippines is a signatory to the CAT Convention. But for this international convention to have teeth, a domestic law is necessary. Under Article 2, CAT Convention, says in part that the government should “take effective legislative, administrative, judicial or other measures to prevent acts of torture”, while Article 4 of the CAT Convention obligates the government to “ensure that all acts of torture are offenses under its (Philippines) criminal law.” Years after the Philippines acceded to the CAT Convention and after having it entered into force in June 1986 and June 1987, nothing has changed and we have not seen any actions from the government to come to terms with its international obligation in eliminating acts of torture. To be sure, torture persists not without the government acquiescence and tolerance if not official sanction. And we have not seen government’s political will to eradicate torture and to enact a national law criminalizing the acts of torture.

Under Article II, Section 12 of the Philippine Constitution, it states that “The State values the dignity of every human person and guarantees full respect for human rights.” But torture persists and is a negation of this constitutional provision.

As stated in Section 12.2 of the Bill of Rights, “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.” But the use of torture is widespread and continues as instrument of political repression.

And Section 12.4, Bill of Rights also provides that “The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.” But justice for victims of torture remains elusive.

Under the Arroyo administration alone, its “war on terror” continues to take a heavy toll on human rights with the TFDP documenting 109* cases of torture with 239 victims.

The use of torture in the Philippines continues to be widespread practice against suspected persons accused of committing either political crimes or criminal acts due to the lack of an enabling law. Besides, the domestic legal framework for prosecuting torturers is inadequate and mechanisms to ensure accountability are totally non- existent.

The experiences of political prisoners show how the military continues to use torture in order to extract information or coerce a confession from victims. The cases of political prisoners verify this claim. Anecdotal evidence strongly suggests that the police and military are using torture with impunity. This shows torture is an easy way out of an investigation and what exacerbates more is that torture usually happened right after arrest or abduction like what happened to many political prisoners.

Although concerned government agencies, in particular the Commission on Human Rights (CHR), investigate cases of torture, such inquiries are by and large ineffective and unacceptably delayed and worst, reported incidents of torture are not immediately acted upon.

Take the case of Wenifreda Marigondon, an alleged New People’s Army (NPA) member who was arrested on November 25, 2005 by members of the Army’s 76th Infantry Battalion (IB) in Plaridel, Quezon in southern part of Luzon. While inside a cramped cell, with little ventilation at the Army’s 76th IB camp, she was never taken out of her cell for sunning or outdoor activities. She was restricted to talk to visiting kin for long because of strict detention rules that even her cousin, a soldier, was not allowed to get to talk to her.

After more than eight months in detention, Marigondon still has to be informed what her crime was. It was only on the first week of April 2006, when she was finally brought before the Regional Trial Court (RTC) in Gumaca, Quezon for preliminary trial of her case did she come to know her alleged crime. For eight months neither she nor her captors knew what crime she was charged with.

Only this September was her case acted upon by the Commission on Human Rights (CHR) regional office, more than a year after her arrest and torture in the hands of the military occurred. This shows that she has been denied not only of her rights to seek redress for the human rights violations committed against her by the military, but the possibility of prosecuting the torturers and her perpetrators.

Taking into account the UN Human Rights Committee concerns about how the government was dealing with cases of torture and torture victims only serves to throw the spotlight on the prevalence of torture in the Philippines. In fact, in its December 2003 concluding observations on the Philippines in compliance to the International Covenant on Civil and Political Rights (ICCPR), it noted its concern over reports torture is “persistent and widespread” and it also highlighted the “lack of legislation [on torture]” in accordance with Articles 7 and 10 of the Covenant. This hampers the victims of torture in seeking justice and has long been proven as an obstacle for victims seeking legal remedies. Torture victims cannot prosecute perpetrators in court for torture offenses. Because, according to Free Legal Assistance Group (FLAG), the absence of a specific law against torture, it could not be recognized as a crime per se or under civil law, as an “actionable wrong” per se.

Compounding the problem of impunity is the deficiency of domestic legislation in the prevention of torture. Thus some of the victims have been able to file charges against their perpetrators, but based on existing laws such as maltreatment or physical injuries but not of torture. The cases of torture being handled by the TFDP clearly demonstrate this point. Most of the charges leveled against the police officers and military are cases of maltreatment, under Article 235 of the Revised Penal Code, and other crimes provided under Articles 248, 263-266 and 286 but not of torture. Further, it is extremely difficult for torture victims to recover from their trauma and injuries due to the fact that rehabilitation programs and adequate medical provisions for them are non-existent.

On the surface, the Philippines, as member of the UN Human Rights Council, had pledged to seek domestic support in ratifying the Optional Protocol of the CAT. However, the government’s sincerity and commitment to implement international human rights instruments is shrouded with doubts in light of its poor human rights performance.

Right to say, if the government has a keen interest to eradicate the acts of torture, it could have enacted an enabling law long before. It is long overdue. Further, this could have been done in full conformity with the provisions of the CAT Convention. Its recent pronouncement to ratify the Optional Protocol of the CAT could not be considered a “development”, due to the fact that the government has yet to prove that its commitment to the prevention of torture would not remain impressive only on paper. This, however, can only be done with the enactment of an enabling law criminalizing the acts of torture.

Governments that came after Marcos had done nothing to criminalize the use of torture. There are several legislative bills that have been filed yet the enactment of a law criminalizing the acts of torture has been pending since the 11th Congress (1998-2001) and apparently receiving cold treatment from within the government.

With these tasks at hand, the TFDP together with other human rights organizations is in the forefront of spearheading a campaign in seeking to break impunity through the enactment of a law which defines and criminalizes the acts of torture and provides compensation to victims of torture.

Part of its advocacy efforts is the establishment of torture-free zones at the barangay, municipal/city or provincial levels. While campaigning at the national level for the enactment of anti-torture law, TFDP is working with local government units and peoples organizations towards the passage of resolutions in support of an anti-torture bill and in declaring communities as torture-free zones. This in part will help in the campaign for the passage of anti-torture law.

On the establishment of torture-free zone, local government units (LGUs) play a key role in the campaign against torture and in the promotion, protection and fulfillment of human rights in light of reports of torture being committed by police and military officers against persons suspected and/or accused of committing crimes.

The establishment of “torture-free zone” is a positive action to combat torture in view of the absence of enabling law to criminalize acts of torture. Thus local government units can declare their areas as torture free zones. More than this, promoting and establishment of torture-free zones is also about people in the community participating in building a human rights environment. Three years into the torture free zone campaign, twenty seven (27)* local government units have declared their areas as torture-free zones.

Without doubt, community involvement is indeed necessary and LGUs should have a say in the promotion of human rights and must show its resolute stand to promote, protect and fulfill human rights. LGUs are also in the best position to take an active role in promoting human rights through local legislation and in the campaign against torture because their constituents directly benefit from the result this kind of action provides.

Now it becomes even more urgent for the government to protect its people against torture and address this type of cruel, degrading and inhuman practice, by enactment of a law criminalizing the use of torture and prosecuting those responsible for torture.

There is one thing that the government can do for us other than telling that it has signified its desire to ratify the Optional Protocol to the CAT. It is to put the protection, promotion and fulfillment of human rights on top of its agenda and the enactment of an anti-torture law as its main priority. The government must work together to eradicate torture. And the time has come for the government to enact a law on torture. Only a law that prohibits torture, prosecuting the perpetrators and giving justice for the victims would torture finally become a thing of the past and consign torture in the dustbin of history.
Jerbert M. Briola is an Island Staff of the Task Force Detainees of the Philippines

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