goes to human rights protection page
links to human rights promotion page
link to human rights linkages development programs
link to special programs page
 
links to home page
links to about CHRP page
links to about human rights page
links to programs and services page
links to news and reports page
goes to links page
links to contact us page
links to site map
      
               
goes back to HR position papers 53-56 page
links to HR position papers 59-60 page

 

ON
SENATE BILL NO. 1805

entitled
"An Act Providing The Rights To Be Accorded Victims Of Crimes, Defining The Duties Of Responsible Officers and Providing Penalties for Violations Thereof"(Sponsored by Sen. Miriam Defensor-Santiago)

====================

          There is one aspect in our criminal justice system that seems to have escaped the notice, not only of the framers of our 1935, 1973 and 1987 Constitutions but also of our legislators past and present. And this is the fact that we give or accord too much emphasis on the rights of the accused. Stated otherwise, it seems that our justice system is heavily tilted in favor of the accused, to the prejudice of the crime victims. Witness the bill of rights of the above-cited constitutions.

          We should not lose sight of the fact, as aptly stated in the Explanatory Note of subject Bill, that crime victims "usually suffer physical and psychological trauma" and should therefore "be treated with respect, compassion and dignity throughout the criminal justice process."

          Indeed, this Bill is very timely, implementing as it does, the constitutional mandate that: "The State values the dignity of every human person and guarantees full respect for human rights."

          It may also be stated that this Bill (Magna Carta for Crime Victims) likewise implements the "equal protection clause" of the Constitution because it provides a counter balance to the bill of rights enjoyed by accused persons under the Constitution. The scales of justice of the blindfolded lady is thereby enhanced and evenly balanced.

          It is suggested, however, that the bill should spell out specifically the officers responsible in implementing the law, Section 4 of the Bill merely mentions officers and employees of the Department of Justice. The officers usually concerned are not only the investigators and prosecutors of crime, but also the officers of the PNP and even Barangay Captains who are usually in the scene of the crime should undertake the responsibility mentioned in the bill. This is to pinpoint the responsibility.

          In closing, we wish to state that the Commission on Human Rights is committed to protect, enhance and promote not only the human rights of accused persons, but also of crime victims, as well.

          We strongly recommend the immediate enactment of this Bill into law.

          Pasig City , 12 March 1997

ON
SENATE BILL NO. 2540

entitled
"An Act To Define And Penalize Acts of Terrorism and Other Purposes"

===========================

OBJECTIVES OF THE PROPOSED BILL

          The proposed "Anti-Terrorism Act of 2003 seeks to define and penalize Acts of Terrorism. This is laudable and is consistent with the Philippine's commitment to promote and protect all human rights and fundamental freedoms contained in various international human rights instruments it has ratified and to adopt such legislation that will give effect to this rights.

Each State Party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Art.2 Par. 1 ICCPR).

 Where not already provided for by existing legislative or other measures, each State Party to the present covenant undertakes to take the necessary steps in accordance with its constitutional processes and with the provisions of the present covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present covenant (Art.2 Par. 2, ICCPR).

           Indeed, it is recognized that terrorism is aimed at the destruction of human rights, fundamental freedoms and democracy. However, in keeping with its obligations, strict conformity with relevant provisions of international human rights standards must be observed (U.N. Resolution 54/164 on Human Rights and Terrorism) to the end that there is no derogation of recognized rights.

OBJECTIONABLE PROVISIONS OF THE BILL

Article 3 on the general description of how terrorism is committed and its subsequent enumeration of the different means by which terrorism may be committed read with Section 9 on Arrest and Detention and Section 10 poses threat to human rights.

          FIRST. The elements that would constitute the crime of terrorism is not definite.

          It is to be noted that the various means by which terrorism may be committed are already crimes in themselves which are defined and punished under the Revised Penal Code of the Philippines . What qualifies it as terrorism is its serious character and the motive attendant to its commission.

Sec. 3. Terrorism - How Committed. - Terrorism is committed by the use or threatened use of serious violence, force, or means of destruction perpetrated against civilians or non-combatant, or against properties with the intention of instilling a state of common danger, panic or fear, or of coercing or intimidating the public or government.

          What amounts to "serious violence, force or means of destruction" and what would be considered as "instilling a state of common danger, panic or fear, or of coercing or intimidating the public or government" was not further qualified. The same must have its own elements. Here lies the risk that classification of terrorist acts might depend upon the arbitrariness of the person interpreting the act.

SECOND. Article 9 on arrest and detention would equip law enforcers with extra powers to prolong detention of arrested persons, without filing the necessary charges in court. Thus,

Sec. 9. Arrest and Detention. - Any person arrested for violation of this Act, pursuant to Sec. 5, paragraphs (a) and (b), Rule 113 of the Rules of Court, may be detained for an inquest period of not more than (15) working days following his/her arrest.

 The period of detention may be extended beyond fifteen (15) days if the person arrested without a warrant demands for a preliminary investigation and waives his or her right under the provisions of Article 125 of the Revised Penal Code, as amended, in writing and in the presence of his or her counsel and shall be entitled to all the rights under the RA No. 7438, otherwise known as "An Act Defining Certain Rights of Persons Arrested, Detained or under Custodial Investigation."

          This is in clear violation of the rights of detained persons to be promptly apprised of the charges against him. Article 9 of the ICCPR provides:

1. Everyone has the right to liberty and security of persons. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

 2. Anyone who is arrested shall be informed, at the time of arrest, of the reason for his arrest and shall be promptly informed of any charges against him.

 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

          Both provisions considered, the implications are: An officer who arrested a person without warrant for crimes under the Revised Penal Code and who inadvertently or maliciously failed to file the proper charges within the prescribed period could easily escape liability by reclassifying the crime to terrorism; more so that "where there is a variance between the acts of terrorism charged in the complaint or information, and that proved or established by the evidence, the accused would be convicted of the offense proved included in the charge of terrorism if the intent to sow terror or intimidate or coerce the government or the public is not proven during the trial.(sec.12).

          The prolonged period will give abusive officer more time to fish for and fabricate evidence to support "probable cause" in charging an innocent person.

          On the Creation of Anti-Terrorism council, Section 19 of the proposed Act provides:

There is hereby created an Anti-Terrorism Council, hereinafter referred to as the "Council" which shall be under the supervision and control of the President, who shall serve as its Chairperson, with the Secretary of Justice and the Secretary of the Interior and Local Government as its vice-chairpersons, and with the following members: Secretary of National Defense; Secretary of Foreign Affairs; Secretary of Transportation and Communications; the National Security Advisor; the Chairperson of the Commission on Human Rights; and such other members that may be appointed by the President.

 The Council shall serve as the central policy-making supervising, coordinating and monitoring body of the government on all matters of domestic and international terrorism. The Council shall keep records of its proceedings and decisions, and such records shall be subject to such security classifications as the Council may, in its sound discretion, direct to safeguard the national interest...

          The functions of the Council are enumerated in Section 20:

a. Formulate and conduct policy researches and studies in addressing terrorism;

b. Direct the conduct of anti-terrorism and counter-terrorism measures and post-conflict actions to address the effects of terrorism;

c. Cause or direct the immediate investigation and speedy prosecution of case involving acts of terrorism and monitor the progress of such cases;

 d. Transfer the conduct of investigation of specific cases from one law enforcement agency to another;

 e..  Establish a comprehensive data-base systems on anti-terrorism and counter-terrorism operations and post-conflict actions;

 f.  Grant monetary rewards and incentives to informants who are willing to give vital information to build up cases for the prosecution of those who committed acts of terrorism;

 g.  Recommend the inclusion of vital witnesses under the Witness Protection, Security and Benefits Programs;

 h.  Call upon any department, bureau, office or other executive agency for assistance;

 i.  Exercise such other functions as may be assigned by the President.

          The effectiveness of the Commission on Human Rights as a national institution depends largely on its independence (Paris Principles) from government. Precisely its role is that of a watchdog. Having the constitutional mandate to monitor government in its compliance with International Human Rights Instruments, Section 9 providing for the membership of the Commission in the Council which is directly under the supervision and control of the President will actually have the effect of compromising its independence. In effect, the Commission will become part of the Executive Branch of the Government. With the enumerated function cited in Section 10 of the proposed bill, membership in the council will create an absurd situation wherein the Commission will be monitoring and calling government's attention on actions which the Commission actively took part. While the Commission should advise government on issues on terrorism, it should do so independently and not as a member of the council.

RECOMMENDATION

          The foregoing mentioned, it is the Commission's recommendation that the review of the proposed bill should be made in consideration of the above comments.