ON
HOUSE BILL NO. 2302
entitled
" An Act Declaring Torture a Crime, Prescribing Penalties for the Commission of Acts of Torture and for Other Purposes"(Introduced by Cong. Reginaldo N. Tilanduca )
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There are still several constitutional provisions especially in the protection of human rights that remain unimplemented due to lack of enabling laws from Congress. One of these is Section 19(2), Article III of the Constitution, which reads:
"The punishment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman condition shall be dealt with by law"
It is therefore timely and praiseworthy that Congressman Tilanduca of the 2 nd District of Bukidnon has seen fit to introduce subject Bill which is otherwise known as the "Anti-Torture Act of 1995."
1. A paragraph should be included in the Statement of Policy that Bill is an implementation of the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment and the Convention on Civil and Political Rights, which the Philippines has acceded to on June 18, 1986.
2. Many entertain the wrong notion that physical injury embraces or includes torture; that torture is but one form of physical injury; and that for this reason, there is no need to pass a law on torture as same can be adequately covered by the law on physical injuries under the Revised Penal Code. This is utterly wrong.
Torture is broader in scope than mere physical injury. For one thing, physical injury in its narrow sense merely refers to the bodily harm or injury while torture includes mental torture. In torture, persons are subjected to indignities, humiliation, degrading and/or inhuman punishment or treatment. Hence, torture is more heinous than mere physical injury. Section 3 of the proposed Bill defines "torture." To be consistent, the Bill should adopt Article I, Part I of the Convention Against Torture and other Cruel or Inhuman or Degrading Treatment or Punishment as follows:
"The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or which with the consent or acquiescence of a public official or other person acting in an official capacity, It does include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
Since paragraph 2 of the Convention on Torture allows any national legislation providing for a wider application, the enumeration of the instances of physical or mental torture in Section 3 of the proposed Bill is very appropriate.
3. With reference to Section 5 of the Bill, it is suggested that the word "avert" between the word "to" and "acts" be deleted, the same being superfluous and gives a contrary meaning to what is intended by the said Section.
4. A new paragraph should be inserted to include Article 2, Par. 3 of the Convention Against Torture as follows: "An order from a superior or offices or from a superior in the office or public authority may not be invoked as a justification of torture."
5. Another provision taken from Art. 13 of the Convention should also be inserted which reads:
"Any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given."
This is taken from Art. 13 of the Convention and is pursuant to Art. XIII, Section 17(8) of the Philippine Constitution.
6. The Commission on Human Rights welcomes Section 6 of the Bill authorizing it to promulgate the rules and regulations for the effective implementation of the Act.
7. It is high time that the government takes the initial steps in stamping out, if not totally eradicating, this scourge in our criminal justice system. What is needed here is a firm and determined resolve of the government to exercise its political will.
The Commission on Human Rights fully supports and endorses and recommends its early enactment by Congress. Pasig City , 24 September 1996
ON
SENATE BILL NO. 1476
"Otherwise entitled as the Indigenous Cultural Communities'/Indigenous Peoples' Rights Act of 1996"
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First of all, the Commission on Human Rights hereby sends its compliments to Senators Arroyo, Mercado, Flavier, Enrile, Honasan, Tatad and the Membership of the Committee on Cultural Communities for their sponsorship of Senate Bill 1476 known as The Indigenous Peoples' Act of 1996 which seeks to recognize, protect and promote the rights of this sector of our population. A comprehensive bill, it addresses the aspirations of these cultural communities for the recognition specifically of their right to their ancestral domain, their right to maintain their cultural integrity, their right to special measures for the immediate, effective and continuing improvement of their economic and social conditions, including in the areas of employment, vocation training and retraining, housing sanitation, health and social security and their right to special protection and security in periods of armed conflict.
In a series of consultations with government as well as non-government and people's organizations including the ICCs last year, the Commission gathered the same yearnings for empowerment and self-determination by the ICCs, which now form part of the Philippine Human Rights Plan for this decade.
HUMAN RIGHTS SITUATION IN THE ICC SECTOR
The ICCs including the Bangsa Moro have long suffered from the dominance and neglect of government controlled by the majority. Massive migration of their brothers from the majority to their homeland shrunk their territory and many of the Tribal Filipinos were pushed to the hinterland. Resisting the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by the elite among the migrant population and unscrupulous businessmen and prospectors from other regions of the country, they become marginalized. And the government has been an indispensable party to this insidious conspiracy against the ICCs. It organized and supported the resettlement of the people to their ancestral land, which was massive during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our legal system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs. Indeed, central to the struggle of the ICCs against the government is the issue of land.
THE BILL IS A RECOGNITION OF THE RIGHT TO SELF-DETERMINATION
The Commission notes with agreement the author's justification for the passage of this bill under the principle of self-determination and empowerment.
While our legal tradition subscribes to the Regalian Doctrine as re-instated in Section 2, Article XII of the Constitution that, to wit: "All lands of the public domain, waters, minerals, social petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period of not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant, "decisional law has made exception to the doctrine. As early as in 1909 in the case of Cariño vs. Insular Government, the court has recognized long occupancy of land by an indigenous member of the cultural communities as one of private ownership, which legal concept is termed "native title." This ruling has not been overturned. In fact, it was affirmed in subsequent cases.
But the Executive Department of the Government since American occupation has not implemented the policy. In fact, it was more honored in its breach than in its observance, its wanton disregard shown during the period onto the Commonwealth and the early years of the Philippine Republic when government organized and supported massive resettlement of people to the land of the ICCs.
Many laws and similar issuances have been passed recognizing implicitly or explicitly and liberally or restrictively, the so-called "native title" or "private right."
In 1919, the Second Public Land Act was enacted, recognizing the right of ownership of any native of the country who since 4 July 1907 , or prior thereto, has continuously occupied and cultivated, either by himself or through his predecessors-in-interest, a tract of agricultural public land.
In 1936, Commonwealth Act No. 141 was passed, providing that Filipino citizens who do not already own more than 24 hectares of land and who have continuously occupied and cultivated by themselves or through their predecessors-in-interest agricultural public land for the past 30 years shall be conclusively presumed to have performed all conditions essential to a Government grant and shall be entitled to a certificate of title.
Commonwealth Act No. 141 was amended by Republic Act No. 3872 of 1964. The amendatory law provides that members of the national cultural minorities who have resided on agricultural, public land since 4 July 1955 are entitled to recognition of ownership whether or not the land has been certified as "disposable." (Section 44)
In Bureau of Forestry Administrative Order No. 11 of 1970, all forest concessions "were made subject to the private rights of cultural minorities within the concession or licensed area as evidenced by their occupation existing at the time a license is issued by the Government, or other muniments of title, and the area on which such private rights exist were deemed excluded from the concession or licensed area.
The Revised Forestry Code of 1975 (PD 705) defines the "private right" of cultural minorities as "places of abode and worship, burial grounds and old clearings."
In 1974, Presidential Decree No. 410 was issued, declaring all agricultural land occupied and cultivated by members of the National Cultural Communities since 1964 as alienable and disposable, except the islands of Panay and Negros and the provinces of Abra, Quezon, Benguet and the Camarines including areas reserved for public or quasi-public purposes, forest reserved, watersheds, national parks, wildlife, sanctuaries,national historic sites, and other forest areas essential to scenic, recreation fish or wildlife purposes. (Ministry of Natural Resources General Administrative Order No. 1 of 1974). The law in its Section 8 decrees that "occupants of ancestral land have a period of ten years to perfect their titles . . . otherwise they shall lose their preferential right thereto and the land shall be declared open for allocation to other deserving applicants." This provision becomes effective on 11 March 1984 .
In Presidential Decree No. 1414 of 1978, the Presidential Assistant on National Minorities (PANAMIN) was authorized to design, implement and maintain settlements among the National Minorities. The law prohibits the Bureau of Forest Development from issuing any type of forest concessions in provinces which had ethnic minority residents as of the last census unless the PANAMIN certifies that there are no ethnic minority occupants in the area to be leased.
In the same year, Presidential Decree No. 1529 was issued, providing for the registration of land ownership by those who by themselves or their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable land of the public domain under a bonafide claim of ownership since 12 June 1945 or those who have acquired ownership of land in any other manner provided for by law.
Of most recent vintage among the laws recognizing the existence of ancestral land right are the Organic Act of the Autonomous Region in Muslim Mindanao (Republic Act No. 6734, 1989) and the Organic Act for the Cordillera Autonomous Region (Republic Act No. 6766, 1989).
Finally, the Constitution provides adequate basis for the adoption of national policies or the enactment of a comprehensive law as the proposed bill promotive of the right to self-determination of the ICCs. Thus:
Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. (Article II)
x x x x x
Section 17. The State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies. (Article XIV)
x x x x x
Section 6. The State shall apply the principles of Agrarian Reform or stewardship, whenever possible in accordance with law, in the disposition of other natural resources, including lands of public domain under lease or concession suitable for agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. (Article XIII)
x x x x x
Section 5. The State, subject to the provisions of the Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of the ancestral domain. (Article XII)
At this point, it may be instructive to quote at length a reknowned Filipino Constitutionalist on his justification for the adoption of a national policy on ethnic law (as the pending measure) grounded on the right to self-determination which is enshrined in the Constitution in the first place. Thus:
The case for recognition, as a matter of national policy, of ethnic law is founded on the principle of self-determination, which is recognized not only in the international sphere of relationships but within the national spheres as well. Broadly understood, the principle of self-determination embraces the major ideas of civility and liberty, because it supports the concept of Nationhood as well as the concept of Local Autonomy, as well as the concept of collective freedom, which is Democracy, as well as the concept of individual freedom, which is Liberty . It is submitted that our national commitment to Democracy, which is essentially collective participation by the people in the making of the laws that will govern them, compels adoption of national policy on recognition of ethnic law.
The highest postulate of democratic theory is that each man shall be governed in accordance with his own will. Two interrelated but distinct spheres for the operation of such will are recognized. One is the sphere of the collectivity, in which individual citizens participate through prescribed procedures in the creation of the Social Will. The manifestation of such Social Will is State Law. The other is the sphere of the individual, in which his wills enjoys Liberty . The manifestation of the Liberty of the individual will is the whole body of private acts and enactments of private rules which for lack of a better name, we may call Contract Law within this sphere of Liberty, in which the individual will manifest itself in Contract Law, two distinct social situations persist, each with its own type of private rules. The first social situation is relatively of an enduring type, which we may call associative, exemplified by marriage, family, adoption, and in the business sphere by partnership, corporation, joint venture and the like. These private organizations set up their own private governments, and in time develop their own private codes of conduct. The second social situation looks for exchange of things or services, which is limited to occasions of need. Such exchanges are transactions, such are barter sales, lease, loan, and similar contracts.
It should be stressed that within both the spheres of the State Law and Contract Law, there is established and continuing recognition of bodies of rules developed and elaborated by collectives within Philippine society. In the sphere of social separate systems of municipal law, consisting of ordinances enacted in behalf of the people within each city or municipality. In the sphere of Liberty , we find as part of Contract Law recognized by the State, distinct and separate bodies of private law enacted by private governments representing private associations or collectives known as corporations, schools, labor unions, churches, etc.
If we find, consistently with the spirit of self-determination, recognition of municipal legislation, which is founded on a territorial bond, or of corporate legislation, which is founded on an economic or property bond, or of church legislation, which is founded on the bond of religion, etc., there is truly no reason why, also in the spirit of self-determination, we cannot recognize the indigenous or ethnic law elaborated by traditional communities existing on the basis of cultural and ethnic bonds. There is no express ban or prohibition in our fundamental law against such recognition. On the contrary, we have a declaration of State policy, which may well be deemed a directive or mandate for such recognition. (Perfecto V. Fernandez, "Towards a Definition of National Policy on Recognition of Ethnic Law within the Philippine Legal Order," Philippine Law Journal, Vol. 55, No. 4, 1980)
THE BILL IS AN EXPRESSION OF THE PRINCIPLE OF PARENS PATRIAE
This bill may also be justified under the principle of parens patriae which is deeply imbedded in Philippine legal tradition. Under this principle, persons suffering from a serious disadvantage or handicap, which places them in a position of actual inequality in their relations or transactions with others, are entitled to the protection of the State. (Perfecto V. Fernandez, "The Legal Recognition and Protection of Interests in Ancestral Lands of Cultural Communities in the Philippines ." In "Human Rights and Ancestral Land: A Source Book." 1983: University of the Philippines , Quezon City )
As enunciated in the leading case of Government vs. Monte de Piedad:
This prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the contrary, it is a most beneficient function, and often necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot protect themselves.
This bill provides for special treatment for cultural communities owing to their condition of poverty, illiteracy and underdevelopment brought about, in the main, by government neglect, foreign colonization and discrimination. The gulf of disparity between them and the majority of our population in all spheres of life could not be spanned even for one generation where no massive intervention on the part of the government is done. Until they catch up with the rest of the country and become important and meaningful participants in the affairs of government, they will always pose some risk or another to the unity, tranquility and stability of the country.
AMENDMENTS
The bill seeks to abolish the Office of the Northern Cultural Communities and the Office of Southern Cultural Communities and create a new one in their stead called the National Commission on Indigenous Peoples which, to emphasize, shall exercise all the powers and duties vested in the said office, among others.
As proposed in the bill, this new office will be composed of five (5) Commissioners, one of whom shall be Chairperson. It is noted, however, that their rank is not specified under the proposed measure. The Committee may wish to consider the longing of the ICCs to have representation in the Cabinet in the person of the Head of the Commission who may hold the rank without portfolio.
WHEREFORE, in view of all the foregoing, we indorse for enactment Senate Bill No. 1476 with the highest recommendation.
Pasig City , 20 August 1996
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