On Filipino Comfort Women

          The report of UN Special Rapporteur on Violence Against Women Radhika Coomaraswamy and the McDougall Report on Systematic Rape, Sexual Slavery, and Slavery-like Practices disclosed that the Government of Japan, in its colonial occupation of Asia during World War II, organized the subjugation and kidnapping of young women for the sole purpose of sexual servitude. Te enslavement of " comfort women" was officially commissioned and orchestrated by the Government of Japan to include gang rape, forced abortions, sexual violence, human trafficking, and other crime against humanity.

          Tens of thousands of Filipino women, some of them as young as thirteen years of age, were either abducted from their homes or streets and brought to "comfort stations" where they were raped daily by Japanese soldiers.

          In addition to the sexual violations, the comfort women suffered other bodily injuries due to constant beatings inflicted by the Japanese soldiers in the course of the rape. Chopping of women's breasts and forced abortion were also prevalent.

          The judges of the Women's International War Crimes Tribunal 2000 considered the crimes of rape and sexual slavery as "crimes against humanity".

          The findings of the Tribunal was that the Japanese soldiers established and expanded a "comfort system" throughout its occupied territory, where women were forcibly kept in facilities for the purpose of providing the Japanese military with convenient sexual services. The scale of the "comfort system" was so widespread and highly regulated, and the operations of the station so consistent, that it can be concluded that the highest level of political and military officials must have known of the criminal nature of the system which they set in motion and sustained. Therefore, it could be inferred that the State of Japan is internationally responsible for the wrongful acts committed by its military forces, government officials, and those individual acting in their official capacity.

          Almost fifty-six (56) years have passed since the abominable wartime sexual slavery, but the Japanese government still fails and refuses to acknowledge its legal responsibility to the Filipino comfort women, so the painful experiences and the psychological trauma suffered by the Filipino comfort women have remained unabated up to now.

          The egregiousness of the offenses and the magnitude of the suffering inflicted to the Filipino comfort women during the war demand reparation by the Japanese government through legal compensation. It is high time to redress the grave affront to the honor and dignity of the Filipino comfort women through legal compensation so that they will finally claim and receive the justice they had been struggling for all these years, especially now that they are in the twilight of their lives.

          The Honorable Senator Loren Legarda-Leviste introduced Senate Resolution No. 24 entitled: "RESOLUTION URGING THE DEPARTMENT OF FOREIGN AFFAIRS TO MAKE REPRESENTATIONS WITH THE JAPANESE GOVERNMENT IN ORDER TO PURSUE THE POST-WAR LEGAL COMPENSATION DEMANDED BY FILIPINO CMFORT WOMEN WHO WERE VICTIMS OF SEXUAL ABUSE BY MEMBERS OF THE IMPERIAL JAPANESE ARMED FORCES DURING THE SECOND WORLD WAR."

          The Commission on Human Rights fully supports the said Senate Resolution No. 24, and likewise urges the Philippine government to pursue the legal compensation by the Japanese government to the Filipino comfort women.

          Quezon City, 03 April 2003

 

On Drug Testing of Government Employees and Candidates for National and Local Office

          Republic Act No. 9165 otherwise known as the COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, authorized drug testing to be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the Department of Health (DOH) to safeguard the quality of test results. Section 36 of the CDDA enumerates, among others, who shall be subjected to drug testing, viz:

(d) Officers and employees of public and private offices-Officers and       employees of public and private offices, whether domestic or       overseas, shall be subjected to undergo a random drug test as       contained in the company's work rules and regulations which shall       be borne by the employer, for purposes of reducing the risk in the       workplace. Any officer or employee found positive for use of       dangerous drugs shall be dealt with administratively which shall be       a ground for suspension or termination subject to the provision of       Article 282 of the Labor Code and pertinent provisions of the Civil       Service Law;

(g) All candidates for public office whether appointed or elected both at       the national or local government shall undergo mandatory drug       test.

      In addition to the above stated penalties in this Section, those found       to be positive for dangerous drugs use shall be subject to the       provisions of Section 15 of this Act."

          Respect for human rights is guaranteed and secured by the constitution but constitutional guarantee does not import an absolute right in each person to be, at all times and in all circumstances, freed from restraints. For indeed there are manifold restraints to which every person is necessarily subject for the common good. (Rubi vs. Provincial Board, 39 Phil. 660, 705 citing cases; Morfe vs. Mutuc, 22 SCRA 424). This is grounded upon the fundamental principle that "persons and property are subject to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the state (Jacobson vs. Massachusetts, 49 L. E & 643 citing cases). Stated otherwise, the possession and enjoyment of all rights are subject to the police power of the state, which is the state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare (Pita - vs. Court of Appeals, 178 SCRA 362).

          It should be noted however that the law requires only random drug testing for offices and employees of public and private offices and the cost thereof shall be borne by the employer. On the other hand, all candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. The CDDA is part of the integrated and coordinated government effort to control, if not eradicate, drug substance abuse in the country. It needs no further elaboration nor proof, for it has long been accepted and proved that substances classified as prohibited or regulated under the Dangerous Drug Act impair both judgment and skill of persons under its influence which makes them unfit to perform their functions.

          It has been opined that compulsory drug testing may violate the right against self-incrimination, which is guaranteed under

          Section 17, Article III of the Constitution, which states that "No person shall be compelled to be a witness against himself." Essentially this right protects an individual by prohibiting the "use of confession obtained from him through force, violence, threat, intimidation or any other means which violates his free will." The Supreme Court in Galman vs. Pamaran explained the basic purpose of the right against self-incrimination:

          Considering the foregoing, there seems to be conflict between the right against self-incrimination and mandatory drug testing, as the result in the latter can be used in the prosecution and punishment of a person for violation of the applicable provision of the Dangerous Drugs Act.

          However, Philippine jurisprudence had clearly settled that the right against self-incrimination applies only to testimonial evidence. "What is prohibited by the constitutional guarantee is the use of physical or moral compulsion to extort communication from the witness, not an inclusion of his body in evidence, when it may be material." As to the kind of testimonial evidenced covered "it is not necessary that a categorical admission of a specific offense be sought." (J. Bernas, The Philippine Constitution, Notes and Cases, 424 {1974 ed.}). It is sufficient that it tends to elicit an element of the offense punishable. Likewise, any "act, whether testimonial or passive, that would amount to disclosure of incriminatory facts is covered by the inhibition of the Constitution." [People vs. Olvis, G. R. No. 71092, Sept. 30, 1987].

          In view thereof, the Commission on Human Rights finds the aforestated provision of R.A. 9165 not violative of any human right. Noteworthy to mention is the statement of Commission on Election

          Chair Benjamin Abalos that the COMELEC will not implement the mandatory drug testing requirement for candidates in the coming polls. He said that mandatory drug testing would violate the constitution, which had previously established qualification for candidates, especially those running for national office.

          Quezon City, 08 July 2003

 

On Separate Detention Facilities for Women and Children

          The Commission on Human Rights of the Philippines, in Resolution     CHR No. A92-007   dated January 28, 1992 and in the exercise of its visitorial powers pursuant to Section 18 (4) of Article XIII of the Constitution reiterated its recommendation to the President to:

" x x x

2. Provide separate detention facilities for women and children.

x x x "

          Despite this, however, the Commission has been continuously receiving verified reports from its regional offices and concerned non-government organizations that the detention facilities are not sufficient to accommodate minors and women separately from men and those convicted of crimes for which they are charged and serving sentence.

          The Philippines is a State party to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and has, in fact, enacted laws, pursuant to the Philippine Constitution, e.g. Presidential Decree 603 for which reason the Government is under obligation to comply with the following:

1. International Covenant on Civil and Political Rights, Article 10

"1.       All persons deprived of their liberty shall be treated with humanity             and with respect for the inherent dignity of the human person;

2.       (a) Accused persons shall, save in exceptional circumstances, be                   segregated from convicted persons and shall be subject to                   separate treatment appropriate to their status as unconvicted                   persons;

 3.       The penitentiary system shall comprise treatment of prisoners the            essential aim of which shall be their reformation and social            rehabilitation.   Juvenile offenders shall be segregated from adults and            be accorded treatment appropriate to their age and legal status."

2. Convention on the Rights of the Child, Article 37

(b) No child shall be deprived of his or her liberty unlawfully or       arbitrarily.The arrest, detention or imprisonment of a       child shall be in conformity with the law and shall be used       only as a measure of last resort and form the shortest       appropriate period of time;

(c) Every child deprived of liberty shall be treated with       humanity and respect for the inherent dignity of the       human person and in a manner which takes into account       the needs of  persons of his or her age. In particular,       every child deprived of liberty shall be  separated from       adults unless it is considered in the child's best interest not       to do so and     shall have the right to maintain contact with       his or her family through correspondence  and visits,       save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right       to prompt access to legal and other appropriate       assistance, as sell as the right to challenge the legality of the       deprivation of his or her liberty before a court or other       competent, independent and  impartial authority and to a       prompt decision on any such action.

3. Philippine Constitution, Declaration of Principles and State Policies (Article II), Section     12

   "The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.   It shall equally protect the life of the mother and the life of the unborn from conception.   The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government."

4. Philippine Constitution, Declaration of Principles and State Policies (Article II), Section    13

   "The State recognizes the vital role of the youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being.   It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs."

5. Philippine Constitution, Bill of Rights (Article III), Section 19(1)

   "Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted.   Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.   Any death penalty already imposed shall be reduced to reclusion perpetua."

6. The Child and Youth Welfare Code (Presidential Decree No. 603)

   Art. 191.      Care of Youthful Offender Held for Examination or Trial.- A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required:   Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees.   The court, may, in its discretion upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable persons who shall be responsible for his appearance whenever required.  

          In the light of these specific provisions under international standards and domestic legislations, it appears that there is failure to protect and promote the rights of children in conflict with the law considering that they have not been provided until now suitable detention centers and facilities separate from adults and/or those convicted of the crimes.

          Considering, however, that the system of detention and/or imprisonment is designed to reform and rehabilitate, the Commission is convinced that, if the Government cannot provide suitable and separate detention centers due to budgetary constraints, children in conflict with the law, as defined in Article 199, should be released on recognizance to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required.

          NOW, THEREFORE, the Commission on Human Rights of the Philippines resolved to propose the following:

1. For the Department of Social Welfare and Development to recommend the exercise of its authority under Article 191 of Presidential Decree No. 603, to prevent human rights violations and future occurrence thereof to children who languish in jail and detention centers together with adult detained and convicted persons and suffering sub-standard and inhuman conditions while incarcerated.
   
2. For the Department of Justice to review the complaints and cases against children in conflict with the law, especially those detained and convicted and serving sentence, for the adoption of measures to improve the justice system for their humane reformation and rehabilitation to include:
   
   • Recommend for the commutation of death sentence or for the imposition of less severe penalty to children in conflict with the law.
     
   • Investigate and/or take into consideration all forms of admission and confession of children in conflict with the law and allegation of torture, force, violence, threat intimidation or any other means which vitiate the free will.
     
   • Report the documented age of minors to all judicial and custodial officials
     
3. For the Department of the Interiors and Local Government to coordinate efforts to provide humane detention centers and shelter for these children and to issue instructions and monitor compliance for
   
   • Law enforcement officials to immediately investigate and document on arrest or first contact, the age of any perpetrator who seems younger than eighteen.
     
   • The Bureau of Jail Management and Penology to ensure that children detainees are provided with separate detention facilities, in accordance with international standards.
     
   • The Bureau of Jail Management and Penology to adopt pro-active and effective measure, to prevent violence between child detainees or between adult and child detainees and to investigate and prosecute those responsible, or those abetting, by way of protecting or encouraging those who have the tendency to abuse.

          The Commission firmly resolved to adopt an advisory for this purpose.

          Let copies be furnished the Office of the President and concerned Offices for appropriate action.

          Quezon City, 17 December 2003

 

On the Right to Suffrage

          Who should win in an election?

          "Suffrage as conferred by the constitutional provision is not a natural right of the citizens, but a political right intended to enable them to participate in the process of government to assure it derives its powers from the consent of the governed. (Pungutan vs. Abubakar, L-33541, 20 June 1972)" [1] . Both international and domestic laws protect and guarantee its effective exercise by the people so that their sovereign will can be manifested.

          Universal Declaration of Human Rights

          Article 21

          International Covenant on Civil and Political Rights

          Article 25

_____________

1 43 SCRA p.1

b. To vote and to be elected at genuine periodic elections      which shall be by universal and equal suffrage and      shall be held by secret ballot, guaranteeing the free      expression of the will of the electors;

c. To have access, on general terms of equality, to public      service in his country."

Article V, Suffrage, Philippine Constitution

."Sec. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise qualified by law, who are at least eighteen years of age and who shall have resided in the Philippines for at least one year and in the place wherein they purpose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot."

          Who should, therefore, win in an election?

          As envisioned under international and domestic laws, it is clear that the sovereign will of the people should win in an election. It is this will to participate in the election of officials that determines the kind of democratic government that will eventually be established. It is by reason of the votes to cast that duly elected candidates may assume the office they wish to hold.

          Since the inception of elections in the country, the electoral process has been generally characterized by irregularities such as fraud, terrorism, violence, vote-buying, ballot snatching, permit to campaign, and the like. These do not reflect the true will of the

          Filipino people, thus, a gross violation of the right to suffrage. All these infringe on the right of Filipinos to self-determination.

          For this reason, it is imperative that an enabling environment be provided for an effective electoral process that reflects the political will of the people. Under a democratic rule, this may not be difficult to attain if the following considerations are observed:

______________________

[2]    Human Rights and Election, a Handbook on the Legal, Technical and Human Rights Aspect of Elections, Professional Training Series No. 2, United Nation Centre for Human Rights, Geneva, p.3

[3]   CHRP Position Paper on HB No. 6581 entitled "An Act Amending Section 261 of Batasan Pambansa Bilang 881, Otherwise Known as the Election Code of the Philippines , as amended and for other purposes."

          In the midst of clamors for clean, honest, orderly, credible and genuine elections, the will of the voting Filipinos should be exercised freely, safely and intelligently, whether inside or outside the voting precincts. There is much to be done in these respect and instrumentalities of government, particularly the Commission on Elections (COMELEC), the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) must play their critical roles, as duty holders, for the full and free exercise of the right to suffrage by all Filipino voters.

          The observance of these international and national standards on the roles of both the government instrumentalities as duty holders and the Filipino electorate as claim holders in the exercise of the right to suffrage shall ensure that the sovereign will of the Filipino people is truly and effectively manifested in this upcoming electoral exercise.

          To the Commission on Human Rights of the Philippines , winning in an election does not stop when the duly elected candidates shall have officially taken their respective oath of office. Winning the election is the effective governance within the tenure of the elected and the quality of public service.

          The right to suffrage, therefore, is not limited to the outcome of the electoral process.

          In short, the electoral process is crucial for the Filipinos to come out victorious in the process of governance of the elected.

          Now, it is incumbent upon every voting Filipino to be vigilant and united in ensuring an honest election for his/her right to suffrage to be protected.

          In the same vein, the Commission on Human Rights of the Philippines calls upon every instrumentality of the government to secure the sanctity of the ballot. The Commission, likewise, exhorts

          Quezon City , 12 February 2004

 

On Summary Execution and Disappearance of Criminals

          During the crime summit held at the Manila Hotel on July 9, 2002 for the purpose of discussing the peace and order situation in the country, attended by the President and heads of law enforcement agencies, Davao City Mayor Rodrigo Duterte commented among others, that: "Summary Execution of criminals remained the most effective way to crush kidnapping and illicit drugs" or words to that effect. His comment drew varied reaction from different sectors. Human rights groups expressed their concern over the issue of extra-judicial execution, saying that shortcuts in enforcement of law that would violate due process should not be tolerated and that what is important is always to uphold the rule of law and the protection of human rights. In this on-going debate on the issue, the Commission on Human Rights hereby issues this advisory in pursuance of its constitutional mandate of protection and promotion of human rights.

          The practice of summary or extra-judicial executions which also results in disappearance is violative of human rights. Summary execution, disappearance or "salvaging", a term coined by the military for liquidating or disposing of an individual who is considered a threat to national security or public order, is condemned by the domestic and international human rights community as a grave violation of human rights and that the systematic practice thereof is of the nature of a crime against humanity. Summary execution or "salvaging" is arbitrary in the sense that it is done without fair, solid and substantive cause, that is, without cause based on law.

          Summary execution is prohibited under the Constitution of the Philippines more particularly under Section 1, Art. III thereof, which provides:

          Summary execution is also violative of human rights and against a state policy provided by the Philippine Constitution more particularly Sec. 11 of Article II thereof which provides:

          The international human rights community calls upon all nations signatory to the International Covenant on Civil and Political Rights to adhere to the protection of human life more particularly Article 6, Section 1 of the convention which reads:

          Since the International Covenant on Civil and Political Rights partakes of a generally accepted principle of international law, the Philippines should comply with the aforesaid provision. Sec. 2, Art. II of the Philippine Constitution provides, viz:

          Conformably with its constitutional mandate, the Commission on Human Rights recommends the following measures and remedies to obviate extra-judicial executions and disappearance:

          Judicial Remedies

          Legislative Remedies

          Executive Remedies

          People's Initiatives

          The government should assure that the commission of a "disappearance" is a criminal offense, punishable by sanctions commensurate with the gravity of the practice. The prohibition of "disappearances" and the essential safeguards for their prevention must not be suspended under any circumstance, including states of war or other public emergency.

          The Philippine government and all non-state actors should strictly comply with its obligation to implement the International Covenant on Civil and Political Rights and its first Optional Protocol which provides for individual complaints. The government and non-state actors should ensure full implementation of the relevant provisions of these and other international instruments, including the UN Declaration on the Protection of all Persons from Enforced Disappearance, and comply with the recommendations of intergovernmental organizations concerning these abuses.

          Quezon City , 7 May 2004