Tag Archives: 2009 Anti-Torture Act

[Action Alert] (PHILIPPINES) Curfew and ECQ violators allegedly arrested and paraded in the streets by Barangay Pineda officials in Pasig City -TFDP

ACTION ALERT

April 6, 2020

Dear Friends,

The Task Force Detainees of the Philippines (TFDP) is forwarding to you an appeal regarding the alleged practice of cruel, inhuman and degrading treatment of curfew violators in Barangay Pineda, Pasig City by the Barangay Security Force headed by Barangay Captain Francisco de Leon.

CASE TITLE: Cruel, inhuman and degrading treatment of curfew violators in Barangay Pineda, Pasig City
DATE OF INCIDENT: March 29, 2020
PLACE OF INCIDENT: Barangay Pineda, Pasig City
ALLEGED PERPETRATORS: Barangay Captain Francisco de Leon and Barangay Security Force

ACCOUNT OF THE INCIDENT:

Based on a report of ABS-CBN on March 29, 2020, more than a dozen persons were allegedly arrested by Barangay Pineda, Pasig City security force for violating the enhanced community quarantine and curfew in the said barangay.

According to a resident who refused to mention his name, most of those arrested failed to show their quarantine pass, while others were caught loitering during curfew hours. They were brought to the barangay hall for blotter. They were then told to fall in line, were given candles and copies of a prayer that they were made to recite while parading the street.

In the interview of ABS CBN news to Barangay Captain Francisco de Leon, he said, “Yan ang parusa, at sinasabihan naming sila na sumunod sa batas, pwede namin silang kasuhan ng disobedience at ito ay may parusang pagkakakulong”. (“That is the punishment; we told them to follow the law, they could be charged with disobedience which has a penalty of imprisonment.”)

Based on the video posted by a certain Jonas Carandang III in his Facebook account, those arrested, all wearing face masks, were made to go on a procession around the village while they carried candles and recited prayers. Voices of people shouting in the background could be heard, “Magsisagot kayo! Kapag hindi kayo sumagot, magdamag kayo sa barangay hall!” (“All of you should answer. If you don’t respond, you will spend the night at the barangay hall!”)

The accosted persons were later released by the security personnel and the barangay staff. What they were allegedly subjected to, however, was cruel, inhuman or degrading treatment, which is punishable under Republic Act 9745, An Act Penalizing Torture and other Cruel and Degrading Treatment or Punishment and prescribing penalties therefor (Anti-Torture Act). Section 5 of the law provides, “Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment…inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter.”

SUGGESTED ACTION

Please write a letter to the following authorities urging them to stop the practice of cruel, inhuman and degrading treatment of curfew violators in Barangay Pineda, Pasig City. Moreover, to:

A. Guarantee in all circumstances the physical and psychological integrity of alleged violators of the quarantine;
B. Ensure that all those who participated and were responsible for the alleged human rights violation be brought to justice;
C. Ensure in all circumstances, especially in these trying times of the COVID 19 pandemic, respect for human rights and fundamental freedoms in accordance with the 1987 Philippine Constitution, international human rights standards and international instruments signed and ratified by the Philippines.

Please send your letters to:

1. His Excellency Rodrigo Roa Duterte
President, Republic of the Philippines
New Executive Building, Malacanang Palace Compound
JP Laurel Street, San Miguel, Manila
Tel: +632 873 68645; +632 8736 8606; +632 873 68629; +632 873 68821
Telefax: +632 873 68621
E-mail: pcc@malacanang.gov.ph

2. Hon. Menardo Guevarra
Secretary, Department of Justice (DOJ)
Padre Faura Street, Ermita, Manila
1000 Philippines
Tel: +632 85218348
Telefax: +632 85262618
Trunkline: +632 85238481 loc 217
Email: osecmig@gmail.com, communications@doj.gov.ph

3. Hon. Eduardo Aňo
Secretary, Department of Interior and Local Government (DILG)
DILG-NAPOLCOM Center
EDSA corner Quezon Avenue, Quezon City
Tel: +632 89250330; +632 89250331
Fax: +632 89250332
Trunkline: +632 88763454 loc 1001
Email: emano@dilg.gov.ph

4. Hon. Jose Luis Martin Gascon
Chairperson, Commission on Human Rights (CHR)
SAAC Bldg., Commonwealth Avenue
U.P. Complex, Diliman, Quezon City
Philippines
Tel: +632 89285655; +632 89266188
Telefax: +632 89290102
Email: chairgascon.chr@gmail.com

5. PNP Chief Lt. Gen. Archie Gamboa
Philippine National Police
PNP National Headquarters
Camp General Crame, EDSA
Quezon City, Metro Manila, Philippines 1100
Tel: +632 87230401; +632 87220650 local 3453/34733

6. Hon. Victor Ma. Regis N. Sotto
Mayor, Pasig City
8th floor, Mayor’s Office, Pasig City Hall
Contact: 0999 880 4490

7. Hon. FRANCISCO DE LEON
Barangay Chief
Banaag Street, Pineda Pasig City
Contact: +632 6319364

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Include your full name, e-mail address, and contact number.

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[Action Alert] Quarantine violators in Bacoor City, Cavite were allegedly arbitrarily arrested, detained and subject to cruel, inhuman or degrading treatment or punishment by members of the PNP -TFDP

Action Alert

April 3, 2020

(Philippines) Quarantine violators in Bacoor City, Cavite were allegedly arbitrarily arrested, detained and subject to cruel, inhuman or degrading treatment or punishment by members of the Philippine National Police

Dear Friends,

The Task Force Detainees of the Philippines (TFDP) is forwarding to you an appeal regarding the alleged practice of cruel, inhuman or degrading treatment or punishment of quarantine violators in Bacoor, Cavite City allegedly by members of the Philippine National Police

ACCOUNT OF THE INCIDENT:

On April 2, 2020, a photo of alleged quarantine violators taken by ABS-CBN reporter Dennis Datu circulated online. Based on a report in Filipinotimes.net, there were 81 residents of Bacoor City who were taken by the Philippine National Police (PNP) into their custody. The residents allegedly violated the enhanced community quarantine being implemented by the Philippine Government to counter the spread of the COVID 19 virus or failed to present their quarantine pass.

The article mentioned that the members of the PNP then allegedly brought the residents to the cemetery to show them where they would end up if they contracted the virus.

The alleged actions of bringing the persons who violated the quarantine order to a cemetery to frighten them that they would possibly die, and exposing them under the heat of the sun are additional risks to the health of the alleged offenders.

Republic Act No. 9745 or the Anti-Torture Law of 2009 defines other cruel, inhuman and degrading treatment or punishment as a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter.”

On March 14, 2020, Mayor Lani Mercado Revilla issued Executive Order No. 10 and Memorandum Order No. 23, as a supplement to EO No. 10 on the implementation of the enhanced community quarantine in Bacoor City. In both documents, there was no mention of arrest and detention of any individual who would violate the said quarantine. What was mentioned in the supplemental order was that “non-essential going out of persons having high-risk of being infected… is strongly discouraged until and when the state of a public health emergency is lifted.”

On March 19, Bacoor Representative Strike Revilla made an announcement that the city was in lockdown, but no details of the guidelines were made available. As of this writing, there is no news regarding the lockdown is available on the Bacoor.gov.ph website.

SUGGESTED ACTION:

Please write a letter to the following authorities, urging them to stop the practice of arbitrary detention and cruel, inhuman and degrading treatment or punishment of quarantine violators in Bacoor City and initiate inquiries in the possibility of human rights violations allegedly committed by the Philippine National Police.

A. Guarantee in all circumstances the physical and psychological integrity of the alleged violators of the quarantine.
B. Ensure that all those who participated and were responsible for the arbitrary arrest and detention and cruel, inhuman and degrading treatment be brought to justice.
C. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with the 1987 Philippine Constitution, international human rights standards and international instruments ratified by the Philippines, especially in these trying times of the COVID 19 Pandemic.

Please send your letters:
1. His Excellency Rodrigo Roa Duterte
President, Republic of the Philippines
New Executive Building, Malacanang Palace Compound
JP Laurel Street, San Miguel, Manila
1005 Philippines
Tel: +632 87368645; +632 87368603; +632-87368606; +632-87368629; +632-87368621
Telefax: +632 87368621
E-mail: pcc@malacanang.gov.ph

2. Hon. Menardo Guevarra
Secretary, Department of Justice (DOJ)
Padre Faura Street, Ermita, Manila
1000 Philippines
Tel: +632 85218348
Telefax: +632 85262618
Trunkline: +632 85238481 loc 217
Email: osecmig@gmail.com, communications@doj.gov.ph

3. Hon. Eduardo Aňo
Secretary, Department of Interior and Local Government (DILG)
DILG-NAPOLCOM Center
EDSA corner Quezon Avenue, Quezon City
Tel: +632 89250330; +632 89250331
Fax: +632 89250332
Trunkline: +632 88763454 loc 1001
Email: emano@dilg.gov.ph

4. Hon. Jose Luis Martin Gascon
Chairperson, Commission on Human Rights (CHR)
SAAC Bldg., Commonwealth Avenue
U.P. Complex, Diliman
Quezon City
Philippines
Tel: +632 89285655; +632 89266188
Telefax: +632 89290102
Email: chairgascon.chr@gmail.com

5. PNP Chief Lt. Gen. Archie Gamboa
Philippine National Police
PNP National Headquarters
Camp General Crame, EDSA
Quezon City, Metro Manila, Philippines 1100
Tel: +632 87230401; +632 87220650 local 3453/3473

6. Mayor Lani Mercado Revilla
Mayor, Bacoor City
3rd Floor, Bacoor Government Center
Bacoor City, Cavite
Tel: +63 46 481 4140

Submit your contribution online through HRonlinePH@gmail.com
Include your full name, e-mail address, and contact number.

All submissions are republished and redistributed in the same way that it was originally published online and sent to us. We may edit submission in a way that does not alter or change the original material.

Human Rights Online Philippines does not hold copyright over these materials. Author/s and original source/s of information are retained including the URL contained within the tagline and byline of the articles, news information, photos, etc.

[Statement] PH Gov’t fails to implement Anti-Torture Law – UATC/PAHRA/OMCT

Ten years have passed since the passage of the landmark legislation prohibiting the act of torture in the Philippines. However, torture still persists in the country with total impunity.

In November 2009, the Philippines enacted the Republic Act (RA) No. 9745 otherwise known as the Anti-Torture Law which criminalizes torture and ill treatment and provides procedural safeguards of persons deprived of their liberty such as but not limited to their rights to notify relatives about the detention, to be examined by an independent medical professionals and to have prompt access to a lawyer throughout the investigation, pre-trial detention and trial. The law also guarantees that there should be no secret, unofficial or incommunicado detention where torture usually occurs. The law imposes criminal sanctions for its violations which include higher authorities for command responsibility.

The Anti-Torture Law of 2009 is regarded as a positive law criminalizing torture being the first of its kind in Southeast Asia, ten years after adoption of the Anti-Torture Law, the challenges faced by human rights organizations and survivors of torture and their relatives in seeking redress from acts of torture and ill treatment remain problematic.

Any good law is useless without its proper implementation. Many problems especially in the aspect of the criminal justice system render the law ineffective with the prolonged pre-trial detention, confessions extracted under duress, lack of prompt medical examination and access to a lawyer, reprisals and intimidation of torture survivors and witnesses; and lack of rehabilitation program for torture survivors and their families.

The investigation of torture allegations only resulted to dead end and perpetuate further the torture impunity such as the torture cases in 2010 of Darius Evangelista, Ronel Cabais, Lenin Salas et al. and in 2011, the torture case of Abdul-Khan Balinting Ajid, which the authorities failed to properly investigate the torture cases and prosecute effectively the alleged perpetrators. Jeremy Corre’s case remains as the only torture case filed in court and prosecuted under the Anti-Torture Law where a police officer was convicted for the act of torture.

With the war on drugs campaign of the Duterte government that have claimed more than 20,000 lives and the Martial Law in Mindanao and the ongoing anti-terrorism campaign, torture and other forms of grave human rights violations such extrajudicial killings and enforced disappearances are feared to continue under the climate of impunity and fear.

Today as we commemorate the 10th year of the enactment of the Anti-torture law, we, the United Against Torture Coalition (UATC), the broadest network of civil society working on torture prevention in the Philippines, call on the Philippine government to comply with its state obligations under the UN Convention Against Torture and to implement the Republic Act 9745.

We specifically urge the authorities to:

• Immediately request the CHRP Chairperson to convene the Oversight Committee in charge of overseeing the Implementation of the Anti-Torture Law. Such Committee should establish a database to systematically collect information on the implementation of the Anti-Torture Law including on investigations, prosecutions, access to medical evaluations, acts of reprisals, implementation of the rehabilitation program and the submission of inventory of all detention centres and facilities under the jurisdiction of the Philippine National Police and the Armed Forced of the Philippines (AFP);

• Take measures to promote compliance with the Anti-Torture Law through education of all government agencies and, military and law enforcement units on the law and torture prevention measures;

• Adopt necessary measures to ensure that all persons who allege or otherwise show indications of having been tortured or ill-treated are offered a prompt, thorough, impartial and independent medical examination. These include but are not limited to: ensuring adequate protection of health professionals documenting torture and ill treatment from intimidation and other forms of reprisals; and ensuring that health professionals are able to examine victims independently and to maintain the confidentiality of medical records; and

• Enactment of establishment of the National Preventive Mechanism (NPM) which in accordance with the Optional Protocol Against Torture (OPCAT) which the Philippines is a State Party.

We assert that torture has no place in a democratic and free society.
We insist that nothing can justify torture.
A government that allows torture is a government that has no value to human life and dignity.
We will therefore continue to defend our rights to be free from torture.

SIGNED:
United Against Torture Coalition (UATC)
Philippine Alliance of Human Rights Advocates (PAHRA)
World Organization Against Torture (OMCT)

All submissions are republished and redistributed in the same way that it was originally published online and sent to us. We may edit submission in a way that does not alter or change the original material.

Human Rights Online Philippines does not hold copyright over these materials. Author/s and original source/s of information are retained including the URL contained within the tagline and byline of the articles, news information, photos, etc.

[Statement] PHILIPPINES: Prosecutor dismissed charges of torture by invoking acts of torture -AHRC

Asian Human Rights Commission

PHILIPPINES: Prosecutor dismissed charges of torture by invoking acts of torture

The Asian Human Rights Commission (AHRC) has learned that a city prosecutor in San Fernando, Pampanga, had dismissed the complaint of torture by five torture victims against a police colonel and other policemen due to “insufficiency of evidence” because their identification of the accused were ‘dubious’ since they were ‘blindfolded’. The five complainants filed a petition for review at the Department of Justice (DoJ) asking them to reverse the prosecutor’s recommendation. This is still pending. Under the Philippine‘s prosecution system, it is the secretary of the DoJ who has final decision on whether or not criminal charges would be filed in court for trial.

Asian Human Rights CommissionThe complainants, Lenin Salas, Jose Gomez, Jerry Simbulan, Rodwin Tala and Daniel Navarro, filed charges on August 9, 2010, for violation of the Anti-Torture Act of 2009 against P/Supt. Madzgani Mukaram, commander of the Provincial Public Safety Office (formerly Regional Mobile Group) and other police officers whose names could not be immediately identified at the time. They were arrested and detained for their alleged involvement with the Marxist Leninist Party of the Philippines, an illegal armed group. Read details here: Story 1: “There are no human rights for us”. They filed complaint of torture while in detention six days after their arrest.
After the overly delayed and lengthy process of, for example, the submission of affidavits, appeals and petitions (including demands by the accused to expunge from record the complaint of torture), prosecutor Maria Gracella Dela Paz – Malapit, concluded in her resolution dated July 21, 2011 that “the instant complaint for violation of Rep. Act No. 9745 (Anti-torture Act of 2009) against P/Supt. Madzgani Mukaram be DISMISSED for insufficiency of evidence”.

However, while Prosecutor Malapit admitted that “there exists a probability that they (victims) were tortured”, she nevertheless dismissed the complaint invoking that the facial identification of the accused was dubious because they “did not have the opportunity to see him considering that they were blindfolded”. In justifying her argument she invoked the Supreme Court (SC) ruling on People vs. Acosta1, by merely copying the jurisprudence that the “identification of the offender is crucial in every criminal prosecution”.

In People vs. Acosta, the jurisprudence was applied in the context in which the convicted person, Jesus Acosta, challenged the identification of Freddie Osmillo, the principal witness of the prosecution of him as the person who shot dead Rafael Villavicencio, Jr. in April 28, 1980. Here, the SC weighs the defence of alibi of the accused as against the positive identification of the witness. The SC held to affirm the conviction of Acosta with finality in determining his guilt for murder.

However, in her resolution Prosecutor Malapit applied the doctrine of ‘positive identification’ in exonerating the accused P/Supt. Mukaram and eventually also the other accused police officers from criminal liability for torture. In Acosta’s case, it was after the conclusion of a criminal trial, but in this complaint of torture it was dismissed invoking exactly the same doctrine even though it was not a criminal trial, but rather the process of determination of probable cause. Her application of the doctrine of positive identification in dismissing the complaint of torture, therefore, is completely taken out of context. Here, she pre-empted and usurped the authority that should have been solely for the court to decide: positive identification to determine the innocence or guilt.

In her resolution Prosecutor Malapit argued:

“Like Salas, the identification made by Tala, Simbulan and Navarro seemed to be dubious. It is unusual that they should be able to identify the respondent talking to them when they did not have the opportunity to see him considering that they were blindfolded. Uncertainty thus exists as to the veracity of respondent’s identification as it is possible that owners of the voices they heard belong to that of other persons who inflicted physical harm on them⦔

If this reasoning is not corrected, the exoneration of the accused by invoking  “blindfolding“, which itself  defined as act of torture under section 4 of the Anti-Torture Act of 2009, renders any sort of remedy inapplicable and meaningless. Here, P/Supt. Mukaram and other policemen had been exonerated from criminal liability for the crime of torture for reasons because the perpetrators had blindfolded the victims they were torturing. This type of reasoning rather emboldens perpetrators to create more sophisticated form of torture without them being identified and assured of impunity.

Prosecutor Malapit, however, admitted the existence of probable cause:

“In here, with the presence of the above-stated injuries of the complainants, there exists a probability that they were tortured. It bears to emphasize that physical evidence is that mute but eloquent manifestations of truth which rate high in our hierarchy of trustworthy evidence (People vs. Vasquez, 280 SCRA 160)”

Anyone who studies law, reading this argument would say these are contradiction in substance as to what the role of prosecutors should be in criminal cases. In the Philippines legal system, the prosecutor’s role is to determine ‘probable cause’, meaning a reasonable ground or circumstances that demonstrate a crime had probably been committed. None of the parties challenged the existence of probable cause. It is not within the prosecutor’s authority to make judgement on whether or not the identity of the person who is accused of committing crime as charge is actually the very person who had probably committed the crime. This principle explains the practice of using John Does and Jane Does, which denotes the identities of persons that are yet to be identified, in the criminal complaint. Therefore, the authority that prosecutor Malapit had taken to herself is in effect, that of the court.

Here, in dismissing the torture complaint, Prosecutor Malapit arbitrarily assumed the authority and power of the court. By deciding this matter to herself, beyond her obligations on determining probable cause, she disregarded the role of the court in determining the matter within their authority. Thus, the questions as to identities of the accused involved in torture, the merits of the case and determination of guilt or innocence, which are supposed to be heard in proper trial, were denied effectively from the court because the case did not reach their jurisdiction.

Freedom from torture is an absolute right. It is a serious crime as it is attributed, not only to an individual criminal act of a person, but a person acting on behalf of the State. Therefore, in applying doctrines and jurisprudence, more caution must be observed. They cannot be interpreted narrowly by arguing and invoking analogous to ordinary case-laws and jurisprudence. In fact, the Resolutions of the Prosecutors are not court decisions, where the guilt or innocence of the accused are determined, but rather contains details on existence of ‘probable cause’. But the manner how Prosecutor Malapit argued in her Resolution it has become in form effectively a court decision following a criminal trial.

The Asian Human Rights Commission (AHRC) is shocked, but not surprise as to how prosecutor who had legal obligations to investigate complaints of torture, understands and interprets how the probability of the crime of torture under the Anti-torture Act of 2009, are committed for them to proceed in recommending prosecution of case in court. In the Philippine legal system, the duty of the prosecutor in determining the existence of ‘probable cause’ is very crucial in criminal prosecution. They are ‘bottle neck’ on whether or not a case proceeds in court for trial.

The AHRC therefore urges Department of Justice (DoJ) to resolve without delay the complainants’ petition for review asking for the reversal of the city prosecutor’s decision in their favour so as to proceed with the prosecution of the case in court. If this wrong is not corrected, it will deny any possibilities of remedies and redress for victims of torture. In prosecution of cases of torture, where public officers are acting within the authority and the power of the State, utmost caution must be observed.

—————-
[1] People v. Acosta, G.R. No. 70133, July 2, 1990, 187 SCRA 39, full text: http://www.chanrobles.com/scdecisions/jurisprudence1990/jul1990/gr\_70133\_1990.php
Read this statement online

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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FOR IMMEDIATE RELEASE
AHRC-STM-060-2012
March 15, 2012