Legal framework regarding torture:
On the Convention against Torture:
The Philippine government ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in June 1986. When the 1987 Philippine Constitution was passed, it adopted the right against torture under article 3 of the Bill of Rights. The decades of dictatorial rule and its fall in February 1986 has had tremendous influence in the drafting of the present Constitution. The use of torture had, during the martial rule, been practice as a policy by security forces, against those dissenting against the regime.
The present Philippine Constitution is remarkable as it envisage the principle of the right against torture, unlike the previous 1973 and 1935 Constitutions, and the Malolos Constitution, which has no provision on it.
On the existing domestic law:
Despite these Constitutional rights the Philippine government remains to have failed to its obligations under the CAT Convention of ensuring the enactment of a domestic law to implement this right. The proposed legislation to make torture a criminal offense was not taken up seriously and has not been given utmost priority. At present, the proposed bills, the Senate Bill 1978 and the House Bill 5709 respectively, though already in the process of bicameral committee, where the two chambers of Congress reviews the bills, this have not been made into law.
There have also been numerous versions of the proposed bills on torture in the previous legislative body. These bills have also gone undergone a number of revisions, being introduced and reintroduced to one Congress to another, however, it never succeeded of having finally enacted into law. The bill on torture, just like the proposed law to make enforced disappearance a criminal offense, has not been considered a priority by the legislative body.
Due to the absence of the domestic law on torture, torture victims have had to resort invoking violations to the provisions of the Revised Penal Code (RPC), the Rights of Persons Arrested, Detained or under Custodial Investigation (RA 7438), amongst others, should they decide to file complaints should victims are being illegally arrested, detained and tortured. These laws, however, are not in full compliance to the norms and principles of the CAT Convention to which the government has had obligations.
On compensation:
However, there are laws, like the Board of claims for victims of unjust imprisonment or detention and victims of violent crimes, which nevertheless provides compensation for victims of torture and of violent crimes. But the maximum compensation that a victim could get is only P10,000 (USD 209) and application should be made within 6 months from the time of the incident otherwise their application could not be accepted, which is often impractical to emotionally and psychologically unstable victims-thereby depriving them opportunities from seeking compensation.
Also, the process and requirement to apply for compensation is also tedious, complicated and the information on how to apply for this is lacking thereby discouraging the victims from applying for this compensation. The burden of proving that the applicants had been illegally arrested, detained and tortured, also rest heavy on him. Not only on seeking for compensation do the victims prove his case, but also in courts.
Under the existing practice, torture victims could only file complaints for physical injuries, maltreatment of prisoners, murder (if the victims died in custody), rape or sexual offenses if the victim is a woman, amongst others, in court. The endemic court delay, lack of an effective witness protection mechanism-that would encourage victims and witnesses into making complaints-and the passing on of prosecutors’ decisions and police investigators that effectively exonerates security forces from any responsibility. There have been cases wherein security forces accused of committing torture had been exonerated on the principle of “presumption of regularity”, meaning when the acts are committed in performance of their duties; and of “justifiable degree of force”, meaning the police are allowed to use force against the person during arrest and in custody.
At present, there are no means wherein torture victims could be rehabilitated and treated according to their need.
The magnitude of the problem:
Unthinkable delays in investigating and filing charges in court on complaints, for example the case of the Abadilla Five, detainees who had been illegally arrested, tortured to confess responsibility to the murder of an influential police colonel, Rolando Abadilla, who was murdered in 13 June 1996, remains to have not been filed in court. Their complaints have not been resolved and filed in court, despite a by the Office of the Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) despite 13 years have passed.
Apart from the lack of domestic law on torture, complainants are also confronted with difficulties even at the early stage of their complaint making. Investigations into allegations of torture against the security forces are not taken seriously. The dominant mentality among police investigators, once they received complaints of torture, is that the complainants are merely making alibi to exonerate his self from charges laid on him. The police investigators also had no sufficient skills, training and equipment, in terms of conducting forensic and scientific methods of investigation.
Not only does the victims struggles to have their complaints, at least, investigated upon by prosecutors, police, and Ombudsman investigators, any complaints of illegal arrest, detention and torture which has connection to cases laid against the victim-complainants that remains pending, could also not be filed on pretext that these could result to contempt of court, or subjudice.
While the Philippine government fails to its obligations under the CAT Convention of legislating a domestic law on torture, they nevertheless have expressed its intention to ratify the Optional Protocol on the Convention Against Torture (OPCAT). The government, however, have yet to comply with this.
In May 2009, the CAT Committee has concluded its Periodic Review on the status of implementation of the CAT Convention by the government. In its Concluding observation (CAT/C/PHL/CO/2) the Committee was “deeply concerned about the numerous, ongoing, credible and consistent allegations, corroborated by a number of Filipino and international sources, of routine and widespread use of torture and ill-treatment of suspects”.
Despite the CAT Committee’s observation, however, there has not been substantial cases regarding torture are filed in courts. Complaints of torture, in particular those involving political detainees, are recorded widely by local groups; police and custodial torture are commonly reported on televisions and in newspaper tabloids, however, largely none of these cases have found their way to courts for prosecution.
These circumstances above explains there are no means that a torture victim could seek remedies and redress to the violation committed against him due to the absence of a domestic law on torture.
Philippines – Alejandro Pinpin, torture victim
Watch the video of torture victim Alejandro Pinpin here.
