PHILIPPINES: Passing law against torture, disappearance an absolute necessity in addition to temporary court relief

On September 25, the Supreme Court has announced that it adopted the Rule on the Writ of Amparo. The new rule, which takes effect on October 24, provides “remedies to any person whose right to life, liberty and security is violated and threatened”. It covers the unlawful acts or act of omission by public officials or private individuals. However, the adoption of this rule indicates that remedies for persons facing serious threats, victims of extrajudicial killings, victims of enforced disappearances and their families, amongst others, have, until now, been lacking within the existing system.

The new rule could provide remedies victims with provision for protection by a government agency or accredited group; it will allow for inspection of places to locate victims of illegal arrest or disappearance, it will require the authorities to produced necessary documents or reports in determining the victims’ plight, and to order referral for witnesses to be included to the Witness Protection, Security and Benefit Programme (RA 6981).

The new rule was adopted following a national consultation organized in July 2007 by the Supreme Court to address the continuing extrajudicial killings, forcible abduction and enforced disappearance of activists. The full text of the new rule can be read at: the Rule on the Writ of Amparo

Though it responds to practical areas it is still necessary that further action must be taken in addition to this. The legislative bodies—House of Representatives and Senate—should also initiate its own actions promptly and without delay. They must enact laws which ensure protection of rights—laws against torture and enforced disappearance—and laws to afford adequate legal remedies to victims. It is a fact of life that torture and enforced disappearance continuously take place all over the country and yet there are no laws against this. They must unequivocally assert that the perpetrators of these acts must be punished and remedies afforded to victims.

While this new rule reinforces the failure in the implementation of laws on protection—RA 6981—and the lack of laws on protecting rights, issuance by the courts of temporary relief or remedies cannot alone be sufficient to address a systemic and widespread phenomena. Though relief is necessary it does not adequately satisfy the remedies that the victims and their families would have desired or preferred to obtain. It is also necessary that remedies become a government policy and part of the domestic laws rather than temporary relief. This should also be the utmost responsibility of the legislative body.

It is a fact of life that persons, particularly social activists, rarely get protection from the authorities despite the gravity of threats they face. RA 6981 provides protection to witnesses but only when their case is filed or is pending in court. The implementation of this law was ineffective and failed to respond in urgent situations. It does not cover protection to persons who are not witness, even though they too faces continuing threats or risk to their lives; thus, they are forced to take the matter of protection upon themselves.

And despite the existence of RA 6981, its implementation is dysfunctional which eventually results in witnesses not coming forward, which also seriously undermines the possibility of effective prosecution of cases in court. When protection and remedies are ineffective, cases hardly progress or are not even filed in court. The government’s pledge also to fund and to strengthen the implementation of this law is yet to gain substantial progress. The failure in the implementation of this law has been proven fatal to witnesses and families of the dead seeking legal remedies from the court.

No case means the perpetrators have not been charged and held to account to their atrocities. This condition results in impunity which emboldens further commission of violations.  The deepening distrust and loss of faith to get remedies from the existing system, inability to implement its own laws which are supposed to give protection is a byproduct and a result of a systemic failure that needs to be address adequately. Therefore, the adoption of the new Rule on the Writ of Amparo by the court is extremely necessary in seeking legal remedies. However, it should not be the only option, nor should it not be strengthened further by way of enacting appropriate laws.

The worsening human rights condition in the county and the reason why cases are not progressing in court or can hardly be prosecuted in court was largely due to either lack of remedies or the insecurity the witnesses and complainants had to suffer. Therefore, adopting this new rule is a potential tool which must be maximized by victims seeking justice and legal remedies. Persons facing threats, families of victims of extrajudicial killings and enforced disappearance are encouraged to utilize their instruments. In addition to this, the other state’s institutions—legislative bodies—should consider this as their point of action by doing their job as it is expected of them: to legislate laws.

The continuing failure by the government’s institutions to ensure that its laws are effectively implemented; and that acts or torture and disappearance are punished as criminal offenses, aggravates the denial of remedies. This should be looked into and addressed effectively rather than the Supreme Court, which instead had to take their own initiatives, in lieu of failure in implementation of laws, to ensure the victims of human rights violation could get at least temporary reliefs from the court.

When acts of the worst form of human rights violations are not even considered criminal offenses, the possibilities of remedies for victims, prosecution of perpetrators, and prevention of similar violations from occurring, become negligible. Acts that are widespread and systematic require a considerable amount of response and remedies—one is to enact laws on this and ensure these are effectively implemented.

The SC’s adoption of this new rule is greatly welcomed, as it addresses practical remedies for victims seeking legal action, yet it also reflects the failure of established institutions—the legislative bodies—to take action. For many years, the proposed laws against torture and enforced disappearance have been pending and there are so far no indications it would be acted upon or legislated anytime soon. The failure by the government on this has in itself already denied a large numbers of victims from obtaining remedies.

The government should take actions promptly to enact adequate laws. As an elected member of the UN Human Rights Council, it must comply with its international obligations—for instance, the Convention against Torture (CAT) requires the government as a State party to the Convention to enact domestic law against torture. They must also ratify the instruments on International Convention for the Protection of All Persons from Enforced Disappearance and to subsequently enact appropriate laws on this. This will ensure sufficient remedies for victims and effective prosecution of perpetrators.