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Would there be Justice for Victims of Torture?
Volume 21 Number 2 & 3
Tuesday, 24 November 2009 17:01
Her mind reeled of thoughts of pain, suffering, and even death.  Unfortunately, no one was around as she incessantly begged the military not to hurt her, especially because she was four months pregnant.  Her plea fell on deaf ears.  The men continued to hit her head and other parts of her body.  They hammered her hands until they became swollen.  They knocked her knees.  They even made her stand under a tree as one soldier cocked his gun and fired towards her direction.  She bled after her ordeal.  She thought of the worst thing that could happen - losing her baby.  Fortunately, her baby tightly held on to her.
Grief was still very evident on the face of Cecilia (not her real name) as she recounted the nightmare she went through when military elements arrested her on November 7, 2006.
A few minutes past three o’clock in the afternoon, Cecilia was walking towards the municipal health office for her pre-natal checkup.  Suddenly, two military men approached her, covered her head with a piece of cloth, and dragged her away.

Earlier that day, SSgt. Guillermo Analasan was killed by two unidentified assailants in a public market a few meters away from the health office in Kananga Town, Leyte.  Cecilia was accused of being with the two who killed Analasan.

Cecilia’s brutal experience is just one among the many incidents of torture that still happen in the country.  Victims suffer, not only physically, but mentally and emotionally.  Justice, however, continues to elude these hapless victims because there continues to be no legislation that criminalizes torture.

The Phenomenon of Torture

“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of a public official or other person acting in an official capacity.”

- UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

As a tool of an antediluvian system of justice, the practice of torture persists and remains an anathema to our country’s so called democracy.  In the past, primitive laws subject the alleged criminal to various physical tests.  Those who do not get hurt or emerge unscathed are said to be innocent and hence set free.

As the years went by, other ways and means were developed to determine a person’s guilt or innocence.  Value was given on human life and dignity and the recognition of the inalienable human rights eventually motivated societies to forsake, if not eliminate, torture as an accepted procedure in their institutions of justice. Unfortunately, there are still those who subscribe to the use of torture to prove that a person is guilty or not.

In 1993, the LAWASIA Human Rights Committee and the Ateneo Human Rights Center conducted a research on the practice of administrative detention in the country.  The results showed that during arrest, there is employment of unreasonable force and ninety percent (90%) of the detainees were arrested without warrants.  Many were not informed of the charges against them.  During custodial investigation, "Many policemen viewed lawyers as obstacles to their investigation… Many detainees claimed maltreatment by the police.  Reasons given by the police were a) to elicit information; b) to obtain confession/admission; c) as a result of provocation; d) the suspect is a hardened criminal; and e) the suspect's guilt is certain."  It was noted that during the safekeeping period, "other illegal acts included maltreatment, extortion, forced labor, and extra judicial execution ("salvaging").

Torture usually happens immediately after arrest or abduction, often at night or at a place where there are few or no witnesses.  The arresting officers may be in civilian clothes or in uniform but without nametags.  Most often, they do not have the necessary warrant of arrest.  They merely "invite" the victim for questioning.

The most common forms of torture are the ashtray, which is burning the skin with cigarette butts; pulling off fingernails; pompyang or el telefono, slapping both ears simultaneously with great force; NAWASA or water cure; wet submarine, submerging the victim's head in water or in a toilet bowl; and dry submarine, covering the victim's head with plastic to cause suffocation.  Other torture methods include MERALCO or electrocution, Russian roulette, rape and sexual abuse, solitary confinement, and psychological or mental torture.

Psychological Torture

Aside from the psychological methods of torture, every physical form of torture has an accompanying psychological or mental effect on the victim.  According to a psychologist, Dr. Shirley Spitz, “Pain is unbearable in that, it is resistant to language…when we explore the interior state of physical pain, we will find that there is no object out there - no external referential content.  Pain is not or for anything.  Pain is.  And it draws (the victim) away from the space of interaction, the sharable world, inwards.”

Psychological torture attacks one’s psyche with calculated violations of psychological needs, along with deep damage to psychological structure and the breakage of beliefs underpinning normal sanity.  Psychological torture consists of deliberate use of extreme stressors and situations such as mock execution, shunning, violation of deep seated social or sexual norms, or extended solitary confinement.

The anguish Cecilia went through, particularly her mock execution, has definitely taken a toll on her.  After her suffering, she has displayed excessive fear of men in uniform.  Even when she gave birth, she was afraid that people in the hospital would harm her and her baby.  She has become suspicious of almost everyone.

Cecilia’s case was brought to the attention of the Commission on Human Rights Region VIII (CHR-VIII).  To this, the CHR-VIII came out with a resolution entitled CHRP VIII-07-10, FOR: UNLAWFUL ARREST, SLIGHT PHYSICAL INJURIES (TORTURE), dated March 15, 2007, pertaining to the complaint of torture filed to their office by the victim states,

Anent the possible impact on the fetus,…we can only make a conclusion…if there is a documentary evidence that the same suffered physical injury (of the mother), and regarding psychological or emotional injury on the baby, that will only be determined after its birth when a physician or psychiatrist so pronounced that said injuries on the child were the consequence of the violence inflicted by the militaries.

Over the years, torturers have even developed the no touch form of torture.  This tactic has been prevalent in Latin America during the 1950s and later spread to Asia, particularly among anti-communist countries.

An example of the no touch form of torture is deprivation of sleep, food, water and other basic needs.  Due to the absence of physical marks, detection of this form of torture is impossible.  Another method is causing sensory discomfort by means of subjecting the victim to cold shower, being made to sit on a block of ice, playing loud music, or making the victim hear the sounds of agony of others being tortured.

Seeking Justice

Compounding the existing culture of impunity is the deficiency in the domestic legal regime in the prevention of torture. The Philippines has yet to have an enabling law against torture.  Thus torturers can only be charged with lesser crimes, if they are charged at all.

At present, victims of torture and their lawyers may file cases on maltreatment, physical injuries, grave coercion, mutilation, administering injurious substances or beverages and rape which are crimes under the Revised Penal Code. However, the definitions of these crimes fall short of the definition of torture in the Convention against Torture. Further, maltreatment and other related crimes of the Revised Penal Code are subject to statute of limitations as provided in Article 90.

From January to June 2007, records of the Task Force Detainees of the Philippines (TFDP) show that there have already been 14 victims of torture.  As can be expected, not one of the perpetrators in these cases has been brought to justice.

It is imperative that a law criminalizing torture is enacted to allow prosecutions for torture and inhuman and degrading treatment which impose severe penalties on perpetrators and persons in authority in order to help prevent further occurrence of torture.

Since the 8th Congress, an anti-torture bill has been filed, and because of failure to enact it into law, it has been refiled in the succeeding Congresses.  During the 13th Congress, the anti-torture bill was passed on third reading at the House of Representatives.  Unfortunately, not a single hearing was conducted at the Senate.

Impunity is the main factor contributing towards the prevalence of the practice of torture.  And until there is a legislation that will criminalize acts of torture, this culture will continue to thrive and victimize people, especially those among the marginalized sectors, who in reality, are the ones most often affected.

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Last Updated on Friday, 15 January 2010 11:42
 

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