The UATC Experience:
Efforts to Put in Place an Anti-torture Law

Part of the United Against Torture Coalition’s (UATC) objectives for its establishment is to support the drafting, filing and lobbying for the enactment of an anti-torture law in Congress.

Through the years, the UATC has exerted efforts to ensure that an anti-torture law would be in place.

	Awareness building Production of information materials (video documentaries, posters, shirts, pamphlets/brochures, comic books) regarding torture Video showing Media projection on the continuing practice of torture and the need to eradicate torture Conduct of focus group discussions and trainings on freedom from torture Anti-torture signature campaign
	Lobbying Conduct of a series of roundtable discussions among human rights advocates, members of Congress, and/or their representatives on the relevance of enacting an anti-torture law Initiating the drafting of an anti-torture bill Participation in technical working group meetings in Congress Sending of letters to senators to urge them to file an anti-torture bill

Putting a domestic legal framework banning the use of torture in place

On June 18, 1986, President Corazon Aquino who then had special legislative powers approved the Philippines’ accession to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), less than two years after the UN General Assembly’s adoption of the treaty.

The UNCAT’s Article 2, paragraph 1 declares that ‘Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.’ This means that the foremost obligation of states under the UNCAT is to put in place a domestic legal framework banning the use of torture. 23 years after the Philippine’s adhesion to the UN instrument, there is no local law on torture to speak of. Some legal luminaries say that, in essence, the principle of automatic incorporation practically makes the prohibition of torture under the UNCAT part of the law of the land. But in the realistic sense, a local statute is necessary since the UNCAT does not prescribe any penalties for acts of torture nor any guidelines in line with the varied domestic contexts of States parties.

The first modern legislations against torture in line with the convention were proposed and filed during the 12th congress (2001-2004). Various versions were filed by Sen. Sergio R. Osmena, III, Sen. Francis N. Pangilinan and Rep. Loretta Ann P. Rosales. These bills never got past the committee level.

A group dedicated to the eradication of torture

In 2000, an assembly of organizations joined forces to pursue objectives aimed to promote the right not to be tortured in the Philippines. The United Against Torture Coalition (UATC) was conceived and member groups committed themselves to the submission of an alternative UNCAT report, undertake information and education activities on the right not to be tortured and lobby for the enactment of an anti-torture law. Amidst its public activities and campaign actions over the years, the UATC consistently carried out lobby work in both chambers of the legislature to pursue the refiling and progress of the anti-torture bills. UATC representatives kept close contact with key people at the Senate and House of Representatives, especially staff and legislators of the committees where the bills were lodged. UATC member organizations also served as resource persons during Technical Working Group meetings and public hearings for the improvement, reconciliation and harmonization of the bills. Despite the active involvement of interest groups under the UATC, progressive committee staff, committed legislators and even a human rights stalwart, Rep. Loretta Ann P. Rosales as Committee on Human Rights Chairperson at the House of Representatives, the 12th congress lapsed without the bills prospering past the committee level.

The 13th Congress, a milestone, nonetheless a disappointment for the anti-torture bill

Several Anti-Torture Bills were filed in both chambers as the 13th Congress (2004-2007) had set off. Shepherded by the likes of Rep. Etta Rosales, Rep. Edcel Lagman and Rep. Saturnino Ocampo and backed by the UATC member organizations, a consolidated version of the 3 bills at the House of Representatives passed the third and final reading. This was an accomplishment for freedom from torture advocates but unfortunately, the counterpart legislators in the Philippine Senate had different priorities. The two bills filed there by Senators Miriam Defensor Santiago and Sergio Osmena III were not calendared for public or committee debate by Sen. Joker Arroyo, the Committee on Justice and Human Rights Chairperson then. Without a parallel legislation being worked on at the Senate, the legislative process for the passage of an Anti-Torture Law grinded to a halt.

The end goal in sight

In the current congress, freedom from torture legislations in both chambers were fortunate to have been given attention. Sponsors of the bills as well as the committee staff had a mindset favorable to the progress of the measures. At the House of Representatives, Representatives Edcel Lagman, Saturnino Ocampo and Risa Hontiveros had refiled their versions while at the Senate, Senator Miriam Santiago refiled hers and Senators Francis Escudero and Rodolfo Biazon filed their own versions. The Committee on Justice and the Committee on Human Rights at the House of Representatives agreed to jointly sponsor the measures.  In spite of several contentious issues, Public Hearings at the committee level led to the reconciliation of the various versions into 1 consolidated draft for each chamber.

Unitedly disunited

In recent years, debate at the international level on the legal accountability of non-state actors has become broader. The established view that human rights instruments should cover the protection of people from arbitrary action of the state only, which was originally the purpose of their adoption,  has been increasingly questioned and even strongly opposed by individuals and organizations around the world. This debate has led towards the growing recognition of individual and non-state accountability in human rights.

It is indeed exceedingly offensive that public officials being remunerated by the people to ensure their security become torturers. However, a line of reasoning put forward is that torture is committed by fellow human beings, not their legal identities. The use of torture is intended to systematically dismantle the persons mind, body and spirit, his or her very humanity. From the victim’s perspective, torture will be torture, no matter who carries it out.

It is important to say that the UNCAT, in its Art. 1(2), provides that its definition of torture is “without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

The human rights community in the Philippines is to this day divided on the issue. Many had chosen to ignore the matter or not come out openly with their positions and views due to the topic’s sensitive nature. Many would attest that this silent discord has caused some unsettling moments in various collaborations and partnerships. Nonetheless, human rights advocates were prompted by the recent positive developments in the progress of the proposed legislation on torture, to collectively address the question of whether to promote the inclusion of Non-State Actor (NSA) accountability in the measure. Whether or not NSAs would be held accountable under the measure would in essence depend on the very definition of torture. Below is a reference of how torture is defined by the two international legal edicts’ definition’s subscribed to by HR organizations in the Philippines.

UN Convention Against Torture (UNCAT) Definition

Rome Statute of the International Criminal Court

UATC members in particular began levelheadedly discussing the issue of NSA accountability. Most if not all organizations agree that NSAs, e.g. Left Groups engaged in armed struggle, the MILF and private corporations and groups with their own militia should be held answerable for their atrocities. The manner of which they should be brought to justice is a different matter. A group of human rights proponents, organizations and individuals outside the UATC established a group called the Committee on Accountability of Non-State Armed Groups (CALASAG) to advocate that the corresponding law’s definition of torture and enforced disappearance not be limited to commission by state agents. In essence, all groups and individuals which prescribe to the “all inclusive” definition strongly assert that the state still has the primary and special responsibility to take effective measures to prevent torture and enforced disappearance. Hence, higher penalties should be imposed on state agents. The Families of Victims of Involuntary Disappearance (FIND) also strongly advocated their institutional opinion on the matter in favor of excluding Non-State Actors from the HR measures. Below is a matrix outlining the points contributed by the two groups with opposing views. They also represent the basis of the line of reasoning of other groups and individuals who had made a position on the concern.

AKBAYAN! Citizen’s Action Party’s Representative Risa Hontiveros filed the only anti-torture bill during the 14th congress which included NSAs as accountable parties in any of the 2 chambers. Rep. Hontiveros and her legal staff defended their position on the issue resolutely until a show of hands during the final committee hearing determined that the consolidated version in the House of Representatives should exclude NSAs.

With the active involvement of UATC member organizations, the consolidated proposed Anti-Torture measure at the House of Representatives which was now known as House Bill no. 5709 steadfastly made its way through the legislative process. Upon its passage at the committee level, the bill swiftly made its way through sponsoprship at the plenary and then approval on second and third reading. During the climax of its progression, the UATC representatives, torture survivors and other individuals from various communities held vigil at the House of Representatives to demonstrate stakeholder interest in the passage of the Anti-Torture Law. House Bill 5709 was approved at the House of Representatives on March 4, 2009.

Committee Against Torture’s review of the Philippine Government’s compliance to the UN Convention Against Torture

The Philippine Government submitted its second periodic report on its efforts to carry out its obligations to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the UN Committee Against Torture late last year. The Philippine Government was subsequently reviewed by the Committee in late April this year. The Philippine Alliance of Human Rights Advocates (PAHRA), the UATC and other organizations submitted a Joint Civil Society UNCAT Alternative Report to the Committee and sent a delegation to participate and intervene in the Philippine review during the 42nd UNCAT session in Geneva. The considerations made by the Committee Against Torture based on the official government report, the various alternative reports as well as the meetings with the government delegation, the Commission on Human Rights Philippines and Civil Society Groups were articulated in the UN body’s Concluding Observations. Its recommendations on the enactment of a law banning the use of torture in the Philippines was pretty much straightforward. The Committees Concluding Observation no. 10 which focuses on the definition of torture states the following:

Definition of torture

C.O. # 10 The Committee notes the State party’s statement to the
Committee that the Revised Penal

Code guarantees that all acts of torture are classified as criminal offences with corresponding
penalties under Philippine laws as well as the explanation provided by the delegation in this
respect. However, the Committee is concerned that the State party has not incorporated into
national law the crime of torture as defined in article 1 of the Convention. While noting information
provided as to the recent passage of the Anti-Torture Bill in the House of Representatives, the
Committee is concerned at the delay in legislating on this matter. (arts. 1 and 4)

The State party should incorporate into domestic law the crime of torture and adopt a
definition of torture that covers all of the elements contained in article 1 of the
Convention. By naming and defining the offence of torture in accordance with the
Convention and distinct from other crimes, the Committee considers that States
parties will directly advance the Convention’s overarching aim of preventing
torture, inter alia, by alerting everyone, including perpetrators, victims, and the
public, to the special gravity of the crime of torture and by improving the deterrent effect of the prohibition itself. The Committee therefore urges the State party to
enact the Anti-Torture Bill as soon as possible.

During the Committee’s meeting with the Philippine Government Delegation, Ms. Felice Gaer, the Committee Against Torture member rapportuer for the review of the Philippines also made the following strong statement with regards to the enactment of a law against torture:

“The enactment of a domestic legal framework banning the use of torture in the Philippines is an absolute necessity”.

Representatives of the Joint Civil Society Delegation to the 42nd UNCAT session at the press briefing on the Committee Against Torture’s Concluding Observations

In the month of May 2009, the UATC held a series of consultations amongst its members to discuss its recommendations to strengthen the proposed bills in order to guide its representatives who would actively be involved in working with the legislators in the culmination of the legislative process towards the final measure.

It had taken some time for the Senate to draw alongside the accomplishment at the lower chamber. Perhaps, partly due to the recent review of the Philippine Government and the UNCAT’s Concluding Observations, the anti-torture bill at the Philippine Senate began to progress.  In may of this year, a week after the UNCAT review of the Philippines in Geneva, the  Secretary of the Senate Committee on Justice and Human Rights summoned freedom from torture advocates from various organizations to prepare for the period of interpellation for the Anti-Torture Bill. Representatives of UATC member organizations provided several forms of assistance to the Committee on Justice and Human Rights chaired by Sen. Francis P. Escudero.

A UATC exhibit on the right not to be tortured was setup beside the session hall during the scheduled deliberations on the proposed measure at the Senate. UATC representatives also acted as advisers to the committee staff and Senator Escudero providing back staffing during the period of  interpellation and third reading. The coalition’s representatives also aided in doing the actual insertion of amendments made during the interpellations in the working draft. Apart from the mentioned technical support, the UATC also provided other senators with information on the proposed measure by visiting their offices so as to secure their concurrence. UATC representatives also worked hand in hand with the committee staff in order to make vital improvements in the bill.

Torture Survivors and UATC representatives work hand in hand to erect the freedom from torture exhibit at the Philippine Senate

Sen. Miriam Defensor Santiago’s intervention

During the period of interpellation, Senator Miriam Defensor Santiago submitted fundamental proposals on the floor which Senator Escudero all accepted. Some of her proposals had to do with the adjustments in phraseology and embellishments of the provisions in order to strengthen the measure. Most however were more significant some of which ultimately made their way to the final version. The following are the important changes Sen. Santiago had put forward:

1. The amendments she introduced
   
   
2.  made the definition and statement of policy more consistent with the broader description of torture emerging in international law, particularly in instruments such as the Rome Statute of the International Criminal Court. Her proposal allows for prosecution of acts of torture regardless of the intent/purpose of the perpetrator, and regardless whether or not he or she acts with the consent or acquiescence of a public officer. The controlling element of torture in this definition, apart from the infliction of severe pain or suffering, is simple custody and control of the perpetrator over the person or the victim. This provided for a more accurate reflection of the prevailing concept of torture under international human rights and international humanitarian law, and will allow for an application of the law to persons other than agents of the State.
   
   
3. Requiring all law enforcement agencies such as the PNP and AFP to submit an updated list of detainees and detention centers as well as correlated pertinent information once a month to the Commission on Human Rights both at the national and regional levels. This strengthens the duties of law enforcement agencies in making important information regarding those in custody publicly available.
   
   
4. Elevating the liability of the immediate commanding officer from being an accessory to principal to the crime of torture for any act or omission, or negligence committed by him or her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission of torture by his or her subordinates. The emerging frame under international law is to hold superior who either knew or should have known that the criminal act was being perpetrated by their subordinates. State obligations under human rights treaties prohibiting torture require states to take positive steps to prevent third parties from committing the violation. This holds persons who should have prevented their direct subordinates directly involved in torture from performing the illegal acts.
   
   
5. Prescribing a uniform penalty not dependent on the actual injuries received but to the violence it does to human dignity. The draft before this amendment still adopted the Revised Penal Codes framework on physical injuries to determine the appropriate degree of punishment. This amendment is in line with contemporary approaches prescribing a uniform penalty not dependent on actual injuries received but on the act of torture itself as an affront to human dignity and society as a whole. Sen. Santiago also introduced the penalty of reclusion perpetua for torturers as well as prison correctional for the maintenance of secret detention places.

Of the significant amendments, the broader definition of torture and the uniform penalty for acts of torture failed to make it in the final version of the measure.

In the entire duration of the floor deliberations on the Anti-Torture Bill at the Senate, torture survivors, interest groups and individuals from various communities, in solidarity with the UATC, were unwaveringly present at the session hall to demonstrate stakeholder support for the enactment of the measure. The three week UATC and stakeholder vigil at the Philippine Senate during the crucial stage of the Senate Bill 1978’s progress, as it was officially labeled, came to a triumphant end when it was approved on third and final reading on the 2nd of June, 2009, several days before the end of the  2nd regular session of the 14th congress.

A mix of advocates; students, torture survivors and human rights workers await the Anti-Torture Bill’s turn to be interpellated at the session hall of the Philippine Senate

BRAT III

On June 26, 2009 the UN International Day in Support of Victims of Torture, the United Against Torture Coalition Philippines (UATC) held the Basta Run Against Torture III: Huling Tulak (the Final Push),

The freedom from torture run gathered together civil society organizations, torture survivors, person from various communities, the CHR, and the Philippine National Police to collectively demand for the immediate passage of the law. Its main objective was to ensure that legislators would subject HB 5709 and SB 1978 to the Bicameral process as soon as the third regular session of the 14th congress opens.

The BRAT III was successfully carried out. A total of 60 Philippine National Police officers, 50 officials from the Commission on Human Rights Philippines and almost 150 individuals coming from Civil Society Organizations, private citizens and torture survivors had made up the group that ran form the University of the Philippines Oblation Statue to the intersection of Quezon Avenue and the Epifanio Delos Santos Avenue (EDSA). The BRAT was led by Fr. Robert Reyes, also known as “The Running Priest”, leaders of the member organizations of the UATC, ranking officials of the PNP and leaders of the Commission on Human Rights Philippines.

The event was covered by the large TV, radio and print outfits in the Philippines.

 
Freedom from Torture Advocacy in motion; The BRAT III

Bicameral Conference Committee Action

Since the bills at the Senate and House of Representatives had differing versions, the chambers called for a conference for the reconciliation and merger of the proposed drafts. Four days before the scheduled bicameral conference, the Senate Committee on Justice and Human Rights requested its counterparts at the House of Representatives, representatives of government agencies and human rights advocates to come together for a special technical working group. The agenda of this meeting was to come up with a working draft that reconciled the Senate and House versions and which would be used by the conferees during the bicam session.

The Senate conferees were Senators Francis Escudero, chairperson of the bicameral conference senate panel and Aquilino Pimentel Those from the House of Representatives were Representatives Lorenzo Tanada III, the chairperson of the lower chamber’s panel, Edcel Lagman, Saturnino Ocampo and Eduardo Zialcita. Commission on Human Rights Chairperson Leila De Lima was a special member of the Conference Committee acting as resource person.  The House-Senate conference committee on the 17th of August reconciled the conflicting provisions of the two versions. The highlights of the bicameral conference were the inclusion of punishment of superior officers of men who commit torture under the principle of command responsibility. The superior officer will be liable as if he was the one who actually committed the torture. the budget of the Commission on Human Rights (CHR) would also be increased to P5 million for this year. It would administer the implementation costs of the measure. The budget increase for 2010 in relation to the act will be discussed in the deliberations on the general appropriations bill. the final version also adopted the house provision on the prohibition of secret detention places, solitary, incommunicado or other similar forms of detention as well as provisions providing particular reference to Other Cruel, Inhuman or Degrading Treatment or Punishment. The final draft measure also alludes on Order of Battle, a document used by state security forces to list organizations and individuals perceived to be the enemy of the state. This is to assert that a persons inclusion in an order of battle list may not be used to justify his or her torture. A provision also requires investigating agencies of government such as the DOJ, PNP, AFP, NBI and the CHRP to conduct a prompt and impartial investigation which is interpreted as a maximum period of 60 days from the time of complaint of torture is filed.

The amendment introduced by Senator Miriam Santiago on a singular penalty for all acts of torture was supplanted by the Revised Penal Code framework which employs a gradation of injuries to determine the degree of punishment for perpetrators.

Forward looking versus Pristine

The coverage of non-state actors was the only issue where the members of the bicameral conference committee spent a lot of time debating. The legislators consulted CHRP Chairperson De Lima on the issue. She expressed that the emerging definition of torture at the international level in line with international legal instruments such as the IHL. Chairperson De Lima also pointed out the importance of considering the victim centered perspective which does not have anything to do with the perpetrators identity. Another concern she put forward was the growing recognition of  individual responsibility on human rights as opposed to the established view that human rights accountability is for States only. Senator Escudero also defended what was considered by proponents of a description of torture of wider application as the “forward looking” definition. Senator Pimentel however preferred to make use of the UNCAT definition since although he believed NSAs should be accountable for torture as well. He believes that the Philippines is not yet ready to effectively implement a law that covers all types of perpetrators and therefore opts to relegate the definition to cover state agents only. The legislators from the House of Representatives passionately defended what they called the “pristine” definition. even civilians who will illegally detain others and then torture them would be meted the supreme penalty for the crime, just like men of authority. Senator Escudero guided the process into a compromise. Finally, a settlement was reached. They all agreed that even civilians committing torture should would be covered by the law but not through the definition provided by the measure. Non-state actors would be held liable through the provision for Suppletory Applications. Crimes stipulated in the revised penal code would cover Non-state actors but the circumstance of Torture would be an aggravating factor. The maximum penalty for crimes under the Revised Penal Code would be meted out to non-state perpetrators of torture.

A reconciled version had been settled after four hours of going over the differing provisions of the House of Representatives and Senate’s anti-torture bills.

Where to from here?

The reconciled Anti-Torture Bill is now in both chambers awaiting to be submitted on the floor for plenary ratification. Once both chambers have given the final approval to the bill, the Speaker of the House of Representatives and the Senate President will then sign the bill which subsequently will be transmitted to the Philippine President. President Gloria Macapagal Arroyo may chose to sign or veto the measure. Should PGMA not sign the bill within 30 days upon receipt in her office, it lapses into law. Congress may override her veto by a two thirds vote should she choose to do so.

Tasks at hand for the Human Rights Community

In the next coming months, the Implementing Rules and Regulations of the Anti-Torture Act of 2009 is to be formulated. A provision in the measure states that the Department of Justice and the Commission on Human Rights Philippines, with the active participation of human rights NGOs shall jointly promulgate the rules and regulations for the effective implementation of the act.
UATC representatives had lobbied key individuals and legislators for the inclusion of the Istanbul Protocol. The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul Protocol isprovides a set of internationally recognized guidelines for medical and legal experts on how to determine whether a person has been tortured and to establish independent valid evidence that can be used in court cases against alleged torturers. The instrument can also be used to aid those involved in the rehabilitation of torture victims in the formulation of specialized rehabilitation programs suited for each individual experience. The Istanbul Protocol by far surpasses the inadequate medical protocol specified in the provision on the right to physical and psychological examination under the pending measure which was only based on existing procedures used in the Philippines today. The likes of the Medical Action Group have been tirelessly advocating for the national government to mandate all investigative agencies to make use of the Istanbul Protocol in ascertaining whether torture has occured. The inclusion of the instrument in the Anti-Torture Law would have given Istanbul Protocol advocates a reprieve after years of campaign work for the set of guidelines to become a national standard. Unfortunately, due to inevitable circumstances, even the mention of the Istanbul Protocol was not included in the main text of the measure. The Human Rights community, together with the Commission on Human Rights will now have to work towards its inclusion in the implementing rules and regulations as well as the annexing of the Istanbul Protocol’s body of text to the law.

It has become a common practice in the Philippines for doctors and medical professionals to abet the use of torture. Many simply perform a cursory checkup instead of faithfully performing the medical procedures required by law. The Anti-Torture law should include prescribed penalties for medical professionals who fail to abide by these procedures. It is necessary for freedom from torture advocates to undertake efforts to push for the inclusion of the accountability of medical practitioners in the IRR if possible.

The Anti-Torture Bill provides that the Department of Social Welfare and Development, together with the Department of Justice and such other concerned government agencies, shall formulate a comprehensive rehabilitation program for victims of torture and their families. These same agencies shall also formulate a rehabilitation program for persons who have committed torture. There are no government agencies in the Philippines with the experience in the rehabilitation of torture victims. Only a handful of human rights NGOs such as BALAY Rehabilitation Center, Inc. and the Medical Action Group have standing familiarity in helping torture victims cope with their experience. To ensure that an effective rehabilitation program suited for torture victims is institutionalized in the Philippines, it is vital that these organizations become actively involved in its formulation and effective implementation. 

In the Anti-Torture Bill’s provision on Monitoring of Compliance with the Act, a committee shall be setup headed by the CHRP with the DOJ and other government institutions as members. Suitably qualified NGOs shall also have the opportunity to be involved in this committee. It is important that organizations focused in the promotion of the right not to be tortured be involved in the formal process of ensuring the government’s compliance to this law in order to contribute an independent standpoint.

There remains much to be done in the struggle for the right not to be tortured in the Philippines. We should continue our watchfulness and participative stance in order to see to it that the efficacy of this measure will truly redound in the lives of ordinary Filipinos. Of course, when the law goes into force, filing of cases should immediately follow.

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