Sharing from Different Stakeholders Regarding the OPCAT
Volume 22 Number 2
Tuesday, 19 January 2010 14:14
The Task Force Detainees of the Philippines (TFDP), as part of its campaign for the ratification of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), sponsored a small gathering of representatives from various stakeholders.  This tête-à-tête on the OPCAT took place at the Sofitel Hotel on August 29, 2008.  Below are some of the sharing regarding the OPCAT from the different stakeholders.

Mr. Victor Caguimbal, Presidential Human Rights Committee (PHRC)

Isang magandang hapon, good afternoon to all.  Greeting for human rights with justice and peace.

I’m Victor Caguimbal from the Presidential Human Rights Committee.  First of all, let me extend the greetings of the chairman of the Presidential Human Rights Committee, Executive Secretary Eduardo Ermita.

Even so, I would like to thank Sr. Crescencia Lucero from the Task Force Detainees of the Philippines for her kind invitation.  In the same way, let me extend the apologies of our Executive Director, Undersecretary Severo Catura for not being here with you today.

Why?  He wanted so much to be part of this activity.  Circumstances unforeseen have entailed a change in his schedule this afternoon.

To the distinguished members of the diplomatic corps, thank you so much for your presence in today’s activity, in this tête-à-tête on the Optional Protocol to the Convention Against Torture or the OPCAT.  Let me state at the outset that the Presidential Human Rights Committee believes in the worth and supports the ratification of the OPCAT subject to the ongoing capacity building activities of agencies that are responsible for its effective implementation.  After all, as early as June 18, 1986, the Philippine government agreed and complied with the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and no less than her Excellency, President Gloria Macapagal Arroyo signed the OPCAT on 22 April 2008 and transmitted it to the Senate for their concurrence.  

Taking these developments in perspective, the Executive’s recent action are affirmed adherence to and affirmation of the need for protective mechanisms for the protection of persons from any form of torture and other cruel, inhuman or degrading treatment and punishment.  As a State Party, the Philippines has always been conscious of its obligations to respect, protect, promote and fulfil the human rights of its citizens.  As we are well aware of the Philippine government’s initial report to the Convention was submitted on 25 June 1988 within a year after the essential provision of the treaty where incorporated into the Bill of Rights of the 1987 Philippine Constitution.  In that report, it was stressed that the Revised Penal Code guarantees that all acts of torture are classified as criminal offense with corresponding penalties under Philippine laws.  In the meantime, the second and fifth consolidated reports covering the period from June 1989 until June 2007 and which was submitted on January 2008 included information on new measures and developments in law and practice relevant to the Philippine government obligation under the Convention.  

Today, we see a number of laws that have been passed that have contributed to and strengthened efforts in the prevention of acts that could be considered as torture or cruel, inhuman and degrading treatment or punishment.  Yet until a law that finally and categorically defines torture is passed, the implementation of the OPCAT remains imperfect.

In the meantime, the Philippines will have to continually and progressively work on building upon available legislative, administrative and judicial measures toward effective conformity with the CAT provisions.  As the lead agency responsible in the Philippines’ implementation and monitoring of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Presidential Human Rights Committee together with the Department of Interior and Local Government (DILG) acting as the focal agency on the OPCAT will work towards a much fuller compliance and implementation of the provision of the said convention in its determination to respect, promote, protect and fulfil human rights.  

Also, the Philippines shall continue to promote an atmosphere of cooperation with all stakeholders through consultation and constructive dialogues.  It might interest everyone today that the crafting of the Philippine Human Rights Action Plan is well underway.  The thematic cluster meeting on the CAT was held on August 21 chaired by the DILG or the Department of Interior and Local Government and participated in by government agencies and members of civil society.  These thematic cluster meetings are a prelude to penalizing the requirement for the conduct of nationwide consultation for the National Human Rights Action Plan.  In turn, this will greatly veer on the current advocacy on the need to ratify the OPCAT and on the need for the country and its government structures to be ably capacitated to take on the challenges attend to this commitment.

Once again, thank for having us here today.  Good afternoon at isang makabuluhan na araw pong ito.  Thank you very much.

Atty. Leila de Lima, Commission on Human Rights

Thank you.  Good afternoon, ladies and gentlemen.  I’m not sure whether sensational is an accurate description, maybe controversial?  

Ladies and gentlemen, the diplomatic corps, my fellow advocates and defenders of human rights, this morning it was enforced disappearances.  Some of you were there in the AFAD event, the launching of the book.  And now this afternoon, torture.  Two of the most grievous, if not the gravest form of human rights violations in humankind.  

The invitation says that I am supposed to share my views and comments on the OPCAT.  Everybody knows, everyone here knows what the OPCAT is, especially its proposed introduction into the system of preventing commission of torture, the National Preventive Mechanisms, on top of the International Subcommittee.

On the National Preventive Mechanism, I’d like to say that the CHR would definitely want to play a pre-eminent role in the National Preventive Mechanism.  After all, we are already given that task under the Constitution.  Our mandate, among our mandate is to conduct visitations in various detention centers.  So this is the visitorial power.  And we take the position always that visitations should always be unannounced or surprise visits.  No prior notice.  No permission.  No authority.  Not even an hour notice, because otherwise, it would defeat the purpose of the exercise of the power.  Because you give them the chance to prepare.  Now, as I said, the creation of the Commission under the 1987 Constitution, more or less comply with the purported aim of the OPCAT.  It corresponds to the OPCAT provisions on the designation or establishment of national preventive measures.  The parameters for national preventive measures as embodied in Articles 18 and 19 of the OPCAT correspond to the provisions of Article 13 Section 18 of the Constitution which enumerates the powers and functions of the Commission.

The minimum powers granted to National Preventive Mechanisms such as the examination, recommendation and submission of proposals to the legislature are met by the constitutional powers and functions of the Commission as to visitorial powers and its powers to recommend to Congress.  But while the general aim of the OPCAT particularly Article 1 is met with regards to the national bodies tasked to conduct regular visits, as I said, the CHR under the present set up is that national preventive mechanism if our powers are properly, effectively, and strongly aggressively utilized.  The Commission has expressed its concern over the failure of the legislature to fully comply with its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or the CAT.  

In the Commission’s draft position paper on the anti-torture bill, the remedies available to victims of torture are found in our Revised Penal Code, specifically Article 235.  We stated in our position paper that judicial as well as administrative remedies are available to victims under existing laws which prescribe specific acts as criminal.  However, prohibition is but only half of the state obligation of a state party to the CAT.  Defining torture is the other half.  We have not done that.  Only when a definition of torture is enacted in Statute can the Commission declare that the Philippine government is compliant with the CAT.  The lack of a formal legal definition in Philippine statute leaves descriptions of acts which would otherwise be torture susceptible to various standards of cruel, inhuman or degrading treatment or punishment.  Crimes of the nature of torture cannot be prosecuted as torture per se but as anything from murder to slight physical injuries.  

Apart from the wide range of offenses and punishments that may be assigned to acts of torture, the ambiguity is far more apparent when psychological methods of torture are employed.  Maltreatment as prescribed in Article 235 of the Revised Penal Code primarily related to physical inflictions.  Cruel and humiliating methods are not clearly applicable to all kinds of methods of torture when taken into the context of the entire provision.  

While the accession of the Philippines to the OPCAT is a welcome development especially because of the involvement of international bodies in the monitoring of cases and the assistance it provides in capacity building, the problems that have beset the full implementation of the progenitor convention which is the CAT remain the same.  Indeed, the OPCAT itself may be fully implemented down to every last word, but the long protracted delay in the passage of the anti-torture bill to law renders the Philippines incapable of carrying out the full intent of ending torture.  

And may I briefly relate to you the reasons why the Philippines should ratify the OPCAT in the view of the Commission.  

OPCAT is a practical tool to assist states to comply with their existing obligations.  OPCAT is action-oriented.  The approach of OPCAT is to provide expert advice tailored to the State’s circumstances as the bases for cooperative institutional reform.  Confidentiality of communication with the State is a key principle.  The OPCAT does not establish a system of complaints or condemnation by the system of open and constructive dialogue between the Subcommittee, the National Preventive Mechanism and the State Party concerned.  OPCAT supports national sovereignty.  The ability of the Subcommittee to visit states territories in fact derives solely from the State’s own exercise of sovereignty in deciding to ratify the OPCAT.  I don’t know why it’s taking much time for the Senate to ratify the OPCAT.  I don’t know if there are special circumstances surrounding the delay.  The Subcommittee differs from the others as it is a confidential and cooperative expert body.  That’s what makes it attractive and acceptable.  The main engine of prevention is not the international body but the national institution, the National Preventive Mechanism designed or selected by the government itself.  And we do not know yet whether it would be a single office or a network of offices or agencies.  Either way, may I just repeat, the CHR would want to be at the center of that mechanism.  Objective is the progressive eradication of torture and ill treatment within each state’s own national context.  OPCAT offers expert advice to the government on legislative reforms and OPCAT opens the door to a new source of international financial assistance.  A special fund is created to help states implement the OPCAT.  Resources, or the lack of resources, is always a problem.  CHR always has that problem.  We have a very broad mandate, overwhelming responsibilities and challenges, but limited capacity and resources.

The Philippines therefore is encouraged to ratify the OPCAT in order to set the tone in the Asian region and position the country as a regional leader in the field of torture prevention.  The CHR has its share of torture cases.  We have, one of the most recent cases is Sgt. Cotiver.  Remember the trainor of the Philippine, PNP Training Academy accused of participating, if not masterminding a kidnapping.  And then you have the Tagaytay 5, recently released.  Last July, the CHR rendered a ruling finding violations of their rights against arbitrary arrest, arbitrary detention and right against torture.  We have about 300, more than 300 torture cases. Many are still pending.  So that’s about my comments on the OPCAT.  We shall continue to push for the immediate ratification of the OPCAT.  Thank you.

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