The limitations of the Philippines’ Anti-Torture Act

Philippines Desk, Asian Human Rights Commission, Hong Kong

The Anti-Torture Act of 2009 has given the Commission on Human Rights (CHR) of the Philippines responsibility to investigate complaints of torture and assist victims in the prosecution of their complaints. The CHR is a constitutional body required to investigate on its own, with or without formal complaints of human rights violations. The Public Attorney’s Office (PAO), a government legal aid agency, is also mandated to provide legal assistance to victims to ensure the proper recording of their complaints whether the complainant is indigent or not. The role of the CHR and the PAO is very important at the early stage of torture investigation.

In all ordinary criminal investigations, only the Philippine National Police (PNP) and special investigators of the National Bureau of Investigation (NBI), a specialized investigating agency under the Department of Justice (DoJ), have the authority to investigate. The role of the CHR becomes important when crimes, including torture, are committed by the PNP, the NBI and members of the security forces.

Unless torture victims or complainants ask the PNP or the NBI to investigate an allegation of torture, the preliminary stage of investigation begins with the CHR. The CHR’s role, however, is limited to submission of the findings of its investigation to the DoJ and Office of the Ombudsman with recommendations regarding the prosecution of the case. This is because no filing of criminal charges can be made in court against members of the PNP, Armed Forces of the Philippines (AFP) and other law enforcement agencies without the approval of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices (OMB-MOLEO). The Ombudsman has the authority to review, accept or dismiss the findings of the investigations, including the findings of the National Prosecution Service (NPS) of the DoJ and the CHR.

The CHR investigates and submits its recommendation to the DoJ, which submits the result of its review on the CHR’s report to the Ombudsman; which reviews both the CHR and the DoJ reports before initiating any action. The Ombudsman has the final decision on whether to proceed with the prosecution of the case in court or not. No charges can be filed in court without its review and approval.

The possibility of effective prosecution of the case depends on the quality of the investigation. The strength of the case depends on the ability and willingness of investigators to collect material evidence, and interpret and appreciate the facts and the testimonies of the complainants and witnesses.

Regrettably, since the Anti-Torture Act was signed into effect in November 2009, in none of the complaints that the Asian Human Rights Commission has documented has a court so far resolved that the accused have a case to answer. The process of these cases has been characterized by neglect resulting in victims losing interest to complain, failure to investigate and conclude investigation promptly as required by law, lack of competence and misunderstanding of officials’ roles, inadequate forensic analysis and medical reporting, and lack of protection for victims complaining of torture and their families, who are subjected to intimidation and threats.

Victims do not complain

No investigation and prosecution can proceed without a written complaint, complainant and witnesses as required by the Revised Rules of Criminal Procedure (rule 110, sections 1 to 12). The Anti-Torture Act (section 11) allows for third party complaints or reports from third parties asking for cases to be investigated. It allows “any interested party thereto” to assist in the process of “investigation and monitoring and/or filing of the complaint”. Despite this, a persistent problem in investigation is the unwillingness of complainants to come forward, due to the failure of the authorities to investigate complaints, lack of confidence and trust in the legal process, long delays in trial and the legal costs that complainants have to incur in pursuing their cases.

In the Abdulbayan Guiamblang case (story 7 in this report), the CHR Region 12 failed to intervene and investigate promptly the complaint of torture filed on his behalf. Abdulbayan is a farmer whom soldiers illegally arrested, detained and tortured in custody on 26 February 2010. The soldiers accused him of being a rebel leader and tortured him to force him to admit that his identity was that of somebody else. The complaint was filed by Task Force Detainees of the Philippines (TFDP) on 26 April 2010 via email. After submitting the complaint, no response was received acknowledging receipt or to inform what actions the CHR had taken. The complaint had to be submitted twice and followed up on to make sure that the CHR had in fact received it. By the time that the CHR investigators visited Abdulbayan at the Cotabato Provincial Jail, he said that he was no longer willing to pursue a complaint.

Three activists, Charity Diño, Billy Batrina and Sonny Rogelio (story 11) were detained, tortured and had fabricated charges brought against them after they were illegally arrested in Talisay, Batangas on 23 November 2009. The three, who are all community organizers, were arrested without a warrant and allegedly had firearms and ammunitions planted on them to justify their arrest. They have not considered filing a complaint of torture, since the soldiers, police and prosecutors responsible for any investigation of their torture would belong to the same agencies as those responsible for their abuse. They instead have chosen to focus on having the fabricated charges laid against them resolved in court.

Nor in the Morong 43 case (story 8) has a complaint of torture been filed against the soldiers and policemen involved in their illegal arrest, detention and torture. The victims were a group of medical practitioners and community health workers arrested on 6 February 2010. The CHR found in its 26 February 2010 investigation report that the alleged perpetrators had committed a variety of human rights violations under the Anti-Torture Act and other penal laws. Despite strong evidence on which the complainants could pursue charges, they choose to postpone because of lack of confidence in the criminal justice system. The number of victims involved in this case is large. The opinion of one victim differs from another. Some of them may be open to prosecute the case in court. But for victims who have had negative experiences with the system in the past, there is little to reassure them that there now exists a legal remedy for crimes of torture.

No prompt investigation

Where complaints are made, the Anti-Torture Act requires in section 9(a) that investigation be completed within 60 days from the time that a complaint is filed. However, the absence of sanctions imposed on investigators failing to meet this requirement means that complainants have no choice but to wait until whenever they finish the job.

In the Anuar Hasim case (story 5), it took more than two months for the CHR Region 12 to begin investigating the case, let alone to complete it. Anuar was tortured in police custody after he was illegally arrested and detained on 4 April 2010. Before the CHR could begin investigate, local police investigators, who were also ordered to investigate, secured a sworn statement from Anuar declaring that he was no longer interested to make a complaint. The CHR was informed that the actions of the police were illegal under section 13(b) of the Anti-Torture Act since they constituted “concealing the act of torture” “or destroying the effects of instruments thereof in order to prevent its discovery”. But after completing its investigation report on 20 August 2010 the CHR could not resolve to recommend the filing of charges of torture. It instead asked to be “given another time to probe further into the details of the case”. None of the policemen accused of torture and those who attempted to prevent the prosecution have been charged in court as of yet.

A complaint about the custodial torture and death of Sumar Abdulwahab (story 2) was made with the CHR Region 12 on 3 September 2010. At time of writing, the CHR is not known to have completed its investigation. Sumar’s relatives know that he was last alive in the custody of the NBI in General Santos City, following his arrest on 3 June 2010. His relatives were denied entry when they tried to visit him at the NBI a day after his arrest, on June 4. When they were finally permitted, they were told that Sumar had escaped by breaking the glass window of his detention cell. Four days later his body was found. It had visible signs of torture.

In the Ambrosio Derejeno case (story 9), it took over three months for the CHR Region 8 to complete its investigation into his torture and disappearance. It was Ambrosio’s son, Edwin, assisted by the TFDP, who filed a complaint on 25 March 2010. When its investigation report was completed, the CHR recommended only a charge of arbitrary detention under article 124 of the Revised Penal Code (RPC) being lodged against the two paramilitary men involved. Their military superiors were not included in the recommendation, despite the principle of command responsibility. None of them were charged either for murder or for torture because the victim’s body was not found.

The Philippines has no domestic law defining criminal liability in cases of enforced disappearances. In cases of prosecution for murder and torture, the legal system requires that there has to be a body. In Ambrosio’s case, the CHR resolved that the crime of murder or homicide has not been proven and stated that “as corpus delicti (body of crime) means the fact of specific injury or loss sustained, in murder the fact of death is the corpus delicti”. The CHR, however, knew that the victim’s wife “mentioned several persons who might be able to help her locate the place where the victim was allegedly killed and buried. However, she has doubts as to whether she can convince them to cooperate and serve as witnesses”. Without the body of the victim the two accused have no criminal liability. No legal action could be taken against them unless a body is produced.

CHR misunderstanding of its role

In the case of Rolan Corpuz and his companions (story 11), the CHR Region 3 investigation report lacked credibility due to questions of legality and procedures in the process of investigation. Rolan and his four colleagues were illegally arrested, detained and questioned in the custody of soldiers on 1 December 2009. There is strong evidence that the soldiers, village officials and other individuals have a case to answer under the Anti-Torture Act, but the CHR Region 3 did not recommend prosecution (see the statement by the Asian Human Rights Commission, AHRC-STM-231-2010).

In their interviews of individuals and witnesses in the community, the CHR Region 3 included those accused of torture and those who worked for them. At the early stage of an investigation, the evidence to be collected, like testimonies and material evidence, is used as the basis to determine the probability of the commission of the crime. It was not necessary for them to interview the accused. The accused would have had their own opportunity to respond to the allegations as required in the preliminary investigation procedure under the Revised Rules of Criminal Procedure (rule 112). The CHR investigators are not journalists who have to take both sides of the story at the early stages. They can accept testimonies or written statements from the accused; however, they should have not been deliberately locating them to get interviews with which to dismiss the need for prosecution.

In this case, the CHR ultimately resolved not to prosecute the perpetrators simply because a third party, who was helping the victims, phoned to inform that changes had to be made in the details concerning the location where the torture allegedly happened. The CHR argued in its investigation report of 6 April 2010 that the changes, which were made neither with the knowledge of the complainants nor with their instructions and consent, were “totally astonishing” and “totally changed the landscape of the case”. Finally, they recommended only to have a “dialogue between and among the persons involved” and to “summon all the persons involved in the case”.

Underdeveloped forensic investigation

In countries with developed forensic investigation mechanisms experts play an important role in the successful prosecution of torture cases. Medical and scientific opinion is a strong foundation of evidence with which to establish the guilt or innocence of a person. In the Philippines, by contrast, evidence still turns heavily on oral testimonies and eyewitness to prove that a crime was committed. The appreciation of forensic evidence by police investigators and prosecutors and its admissibility as evidence in Philippine courts has emerged only in the last 15 years [see Antonio Lejano v. People (G.R. No. 176389), 14 December 2010]. The courts still do not have developed jurisprudence on matters of forensic investigation, and there is strong resistance for many practical reasons. Courts still heavily depend on oral testimonies of witnesses to establish the guilt or innocence of the accused.

Most forensic experts in the Philippines are in the government service, particularly in the PNP Crime Laboratory and the NBI. Only a few are in private practice. Others are attached to the universities, where they teach medicine and forensic science. Because of the small number of private forensic experts who can be consulted and who can challenge the credibility of forensic examinations presented as evidence in court by forensic experts from the government, the court in practice considers the testimonies of the latter uncontested. Forensic and medico-legal experts routinely testify as expert witnesses in court trials for the prosecution.

In cases where there are questions as to the reliability of government forensic experts, there is no way in which a court can test or examine the credibility of their testimonies and findings. Unless the aggrieved party wanting to question the credibility of the examination can offer a private forensic expert to do this, the court routinely takes the testimonies and findings of the forensic expert from the government as accurate. There is a presumption that whatever the testimonies and findings of the forensic experts are, they are accurately done and done in good faith.

Where the party cannot afford to pay private forensic and medico-legal experts there is no other means to challenge the forensic evidence presented in court and the testimonies of the expert witnesses, apart from presenting witnesses to give oral testimonies. In this situation the court has to decide whether the forensic or testimonial evidence deserves judicial consideration and which is of greater weight. There is no consistent rule as to which carries greater weight, and the jurisprudence on matters involving the weighing of forensic evidence and the testimonies of expert witnesses in criminal cases remains underdeveloped. There is no rule clearly defining the value of forensic evidence to determine the guilt or innocence of a person.

Although the requirement for forensic and medico-legal experts under the Anti-Torture Act of 2009 deserves appreciation as a development in the field of law, it is problematic in practice. Since most forensic and medico-legal experts work for the government, they are themselves policemen or have close working relationships with police. They are part of the police establishment and are subject to their own regulations. Because they are used to testifying for policemen in prosecution cases, it would be extremely difficult for them to testify against the policemen whom they work for. It is also difficult for them to represent on behalf of the defence when their orientation to testifying in court is for the prosecution.

Some of the weaknesses in forensic science in the Philippines relevant to cases of torture can be found in the case of Darius Evangelista (story 6). Police filed a complaint of torture against the policemen involved without being certain by way of evidence from scientific examination of a human skull found in garbage was that of a man whom eyewitnesses had seen being tortured in police custody before he disappeared.

In Darius’s case, the testimonies of eyewitnesses were alone sufficient to establish probability that a crime of torture and murder had been committed by the policemen involved. They described vividly the physical condition of the victim when he was taken inside the police station, they heard his screams from excruciating pain, they saw how badly injured he was and that he was last seen in the custody of the accused. They contain enough information for the prosecutors to recommend the filing of charges in court for trial; however, unless the body of evidence, as required by the court rules, is produced in this case to prove the crime, the policemen involved are very likely to get away with torture and murder. At time of writing, the prosecutor handling this case has yet to resolve whether or not to recommend for the filing of charges in court.

Meanwhile, the skull which is believed to be that of the victim and in this case which would serve as the body of evidence has not been examined by forensic experts from the PNP or NBI. When the skull was found in March 2010, the policemen required the victim’s family to produce dental records of the victim, which they would use to match the dental structure of the skull that was found. The victim’s family, however, could not produce dental records because they do not have any. Most people in the Philippines do not have dental records. They only go to the dentist to have their rotten teeth extracted, not to record their dental structure. There is not systematic recording of dental structures.

Another way of determining the identity of the skull is to compare its DNA to the DNA of a member of the family; however, this procedure is enormously expensive and the victim’s family cannot possibly afford to pay for the cost. Even the PNP and the NBI, who are legally obliged to perform this test since the result of their examination will also be used as evidence for the prosecution in court, have not been able to do it because the government has no adequate facility.

Poor medical reporting

Section 12 of the Anti-Torture Act requires that “physical examination and/or psychological evaluation of the victim shall be contained in a medical report” and “include in detail his/her medical history and findings, and which shall be attached to the custodial investigation report”. Furthermore, sections 22 to 24 of the IRR require medical examiners to “conduct a diligent and complete medical examination”. Their medical examinations of torture victims must be thorough and properly recorded. Among the important details required to be recorded in the medical report are: the identity of person who brought the patient or victim, to ascertain who took him into custody; the nature and cause of the injury; approximate time of the infliction of injury, and relate it to the period of custody; and, the diagnosis and disposition of the victim.

However, the medical reports produced by Ms. Ma. Antoinetta Odi, MD, a medico-legal officer in General Santos City, after examining victims Anuar Hasim on 12 April 2010 and Misuari Kamid on 18 May 2010 did not contain this required information. Anuar informed Ms. Odi that he had been tortured, but she allegedly did not pay close attention to him. She did not record the visible contusions on his left chest. Without bothering to check his blood pressure, she declared him “physically fit for commitment (to jail)” right away. In Misuari’s case, her medical report was too general and broad. Her reports lacked details about the medical interpretation of the impact of torture on victims, cause of injuries and her opinion of the victims’ medical condition.

None of what Ms. Odi did complied with the requirements of either the Anti-Torture Act or of the United Nations Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Her method of examination was purely clerical rather than scientific in nature. She tried to get rid of her patients as quickly as possible by completing her examination right away. Her examination had no semblance at all of how an effective examination of torture victims should proceed. Her examinations were purely to comply with paperwork to declare the ‘fitness of detainees’ to be remanded to prison, rather than to comply with her obligation to investigate allegations of torture. Ms. Odi’s close association with the local police investigators, as she is one of the few practicing medico-legal experts in the city, puts her credibility to question in performing medical examinations of torture victims. She also stands as expert witness in numerous criminal cases the police are prosecuting, like rape and murder.

Abdulbayan (story 7) was taken for a medical check-up by the same persons who had interrogated him; however, no real medical examination could take place. Again the purpose of examination was reduced to complying with paperwork, and to deliberately cover up and prevent any medical proof of torture from emerging. The person examining him only took his blood pressure. He was informed of neither the identity of those who took him for examination nor the person who examined him. Abdulbayan’s medical report must have a contained declaration that he was fit for remand to prison because he would have not been accepted at the Cotabato Provincial Jail had it not.

Obstacles presented by the prosecutor

The problem of undue delay in the investigation and prosecution of criminal cases against state agents is common in the Philippines. Some accused deliberately delay the process by filing numerous appeals and petitions. Such tactics are used to enable public officers and employees to retire from public service without records of criminal prosecution, or to frustrate victims and cause them to lose interest in pursuing their cases due to long delays.

In the case of Lenin Salas and his companions (story 1), P/Supt. Madzgani Mukaram has taken numerous petitions to prevent a torture complaint from being admitted by the prosecutor as a criminal complaint. He has also petitioned that documents in the case be completely expunged from the record. He has questioned the medical examination result of the CHR and the Medical Action Group (MAG), a local nongovernment organization, claiming that their findings are hearsay and do not comply with the technical requirements of criminal procedure, such that findings be “sworn and subscribed to”, and that the doctors did not present themselves for possible clarificatory questioning.

In determining probable cause, the Rules of Criminal Procedure do not require that complainants or defendants have to submit position papers. It also is not necessary for petitions or appeals to be taken into consideration as absolutely necessary in complying with the probable cause. This stage is not yet proper trial where the requirements of due process strictly apply; however, most accused in torture cases have exploited this provision either to delay proceedings or to have them expunged from the records. Also, in the Philippines the right to appeal is a statutory and not a constitutional right. It is subject to limitations and regulations as provided by the law. In most criminal cases though, the prosecutors who are in charge of the case would have to study the appeals and petitions and would have to satisfy the appellant that they were given consideration.

Other obstacles from the prosecutor in aiming to resolve cases promptly arise because as lawyers and government employees they are subject to rules and regulation of the Integrated Bar of the Philippines (IBP) and the Civil Service Law. They fear being prosecuted for charges related to their practice of law and of being members of the bar—for example any complaint that relates to legal practice, and in this case probably falls under violation of due process, is a serious offense. Once charged and convicted, be they in administrative or in the criminal proceedings, there are enough grounds to impose a penalty of suspension or dismissal from the government service. This is also a sufficient ground to have the lawyer disbarred for ignorance of the law.

Prospects for administrative cases

Under the Administrative Code of 1987 each of the government departments and agencies to whom a public officer and employee is attached has its own mechanism to investigate complaint as an administrative case.

The National Police Commission (NAPOLCOM) was created under the PNP Reform and Reorganization Act (RA 8551) to exercise “summary dismissal power” over members of the PNP. It has jurisdiction to receive complaints and investigate wrongdoing. It can impose a maximum penalty of dismissal from the police service on any police officer found guilty of gross misconduct. Other penalties include demotion, forced resignation and suspension. In a situation where an accused threatens or harasses complainants, a 90-day preventive suspension can be imposed while the administrative proceedings are being conducted.

There are two sub-complaint mechanisms under NAPOLCOM’s jurisdiction. These are the Internal Affairs Service (IAS) and the People’s Law Enforcement Board (PLEB). The IAS, a complaint mechanism within the PNP hierarchy, is national and regional in scope, while PLEB is a citizens’ complaints mechanism created by members of the local legislative assembly. It is required to have one local PLEB for every 500 city or municipal police personnel, to receive complaints and conduct summary hearings on officers and members of the PNP. Both of these mechanisms have summary dismissal powers; however, their decisions are subject to appeal by the Regional Appellate Board of NAPOLCOM.

Administratively, a complaint of torture against a police officer constitutes an allegation of grave misconduct. If NAPOLCOM, PLEB and the IAS determine that the accused is guilty, he can be dismissed from the police service right away. The punishment is enforceable immediately. It is effective even when the appeal on the punishment has not been resolved by the appellate courts and quasi-judicial bodies. No pending appeal can prevent the implementation of this punishment. Once a complaint is filed with the CHR and in court, the retirement benefits of the officer would be withheld. Only when the court clears him from any criminal liability on a final judgment can he receive benefit and compensation, and also be reinstated into the police service.

But in the Sasa Five case (see article by Danilo Reyes in this special report) a police officer who prevented the victims from signing statements alleging torture so as to block evidence from the victims from being included in the official record was not punished proportionately for his attempt to obstruct justice and cover up for the policemen accused of torture. The punishment that he got from the IAS was only a verbal reprimand.

Lengthy appeals process

In all criminal and administrative cases the accused has the legal right to file appeals and motions questioning the findings of the CHR, the DoJ and the Ombudsman. The accused also has the right to file appeals or motions for dismissal of the case, even when already filed in court. Without appeals from the accused, a complaint of torture is supposed to be filed in court within four months. But in reality this does not happen. This timetable does not include proceedings for appeals and the trial process when the case is tried in court.

A decision of the prosecutor to bring charges against a person in court can be appealed with the secretary of the DoJ on questions of law; for lack of evidence, and for absence of probable cause. The secretary has the final decision on whether or not the prosecution proceeds, unless the president, who has political control over the department, gives contrary orders. The secretary also has the power to reverse or approve the findings of all decisions made by public prosecutors.

But the DoJ decision is subject to judicial review, should the accused decide to bring the case to the Court of Appeal (CA) or Supreme Court (SC). When probable cause is being determined, the accused also can question the case in the CA and the SC. The CA and SC have the authority to accept, review and reverse the decision of the DoJ on questions of law under rule 45 of the Rules of Court.

Unfortunately, the appeals process has been abused so as to frustrate torture victims who are seeking prompt legal remedies. The Anti-Torture Act and its IRR require time limits in the completion of investigation and the filing of criminal charges in court. But provisions of the Speedy Trial Act (section 10; on exclusions) and the Rules of Court (rules 40, 41 and 42) among others exempt delays in the course of ordinary procedure. The effect of these provisions is to prevent effective prosecution and to prolong the trial of the case in court. Even where there is no legal justification for an appeal and no questions of legality are involved, appeals are made for the purposes of delay, and the legal system tolerates these.