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Reflections on the Concluding Observations of the Committee Against Torture
on the 2nd Periodic Report of the Philippines
10 July 2009
presented by
LEILA M. DE LIMA
Chairperson
The Commission on Human Rights of the Philippines (CHRP), in the exercise of its mandate to promote and protect human rights, has harnessed its mandate to 'monitor government compliance with international human rights treaties' to directly engage in the treaty reporting process.
The engagement with the United Nations Committee against Torture (or the CAT) has been a learning experience. The Commission's reflections consider the process, on the one hand, and the desired outcome of the treaty engagement, on the other, as we work towards a torture-free terrain in the country.
Engaging with the Committee
The process of engagement with the CAT was significant to the Commission as a national human rights institution because it is among the firsts (second, to be exact, the 1 st was before the ESCR Committee last November 2008) that we have actively engaged in the treaty reporting process, elevating our concerns on the protection of life, liberty and the security of person against the principles, standards and norms of the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Many NGOs have also seen this as a first considering that it has been 16 years since government's initial implementation report.
It was also made more significant as the Commission was informed that we were 'breaking tradition'. Described as the most 'conservative' treaty body, the Committee Against Torture’s meetings with national human rights institutions as well as with civil society, were held privately and exclusively. It was by way of procedure, a first in Treaty Body engagement, to receive such a request from a national human rights institution that conveyed its desire to share its time with legislators.
The reason why we shared our time was basic. The Philippine government has failed to implement the Convention’s primary obligation, that is, to define torture in domestic law. The presence of a legislator with no less than the Chairperson of the House Committee on Human Rights, was crucial in providing direct and credible information to the treaty body on the current status as well as the difficulties in legislating the anti-torture bill Congress.
NHRI Submission
The Commission on Human Rights presented its independent submission to the Committee and was very encouraged by the outcome document. Its concluding observations, we can daresay, reflect many of the Commission’s recommendations that have been based on actions on investigation, jail visitation and legislative linkages to address incidences of torture and ill-treatment and allied issues.
Upon review, many recommendations relate to the Commission’s advocacy for the adoption of a Human Rights Legislative Agenda for the 14 th Congress. This was prescribed in the exercise of our mandate to 'recommend to Congress effective measures to promote human rights'. The HR Legislative Agenda utilizes core human rights treaties as basis for the harmonization of domestic laws with human rights standards and principles.
With the issuance of the Concluding Observations by the Committee Against Torture, the HR Legislative Agenda will have additional basis for proposals of human rights measures recommended to further harmonize provisions of international human rights treaties with domestic law.
For the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, the following measures, primary of which, is the passage of Bill on Anti–Torture, were proposed to both the executive and legislative branches:
The Agenda also includes the ratification of the following human rights instruments:
In addressing challenges faced by the Commission in the exercise of its mandates to promote and protect human rights, the Agenda also includes the strengthening of the CHRP. In this regard, the Commission has campaigned for the passage of the CHRP Charter that is designed to provide the needed strengthened investigative powers of the Commission and an elaboration of our quasi – judicial powers that include the application of preventive and legal measures. The current versions of the proposal enumerate these measures as follows:
Sec. 19. Scope of Preventive Measures. – The preventive measures under Article XIII, Sec. 18 (3) of the Constitution that may be issued by the Commission in the investigation of cases involving all forms of human rights violations shall include the following:
a) Injunction orders directing any member of the government’s military or police forces, as well as public officials or employees, or any person acting under their control and supervision, to desist from hiding, transferring or torturing a detainee and to allow access to said detainee by the Commission, his/her counsel, physician, and relatives;
b) Orders directing the government official or employee, or any person in control of the premises of any government agency or office, specifically police and military detention facilities, secret detention places, stations, installations, camps, bases, and training schools, as well as private land and property, to permit the inspection of said premises;
c) Orders to transfer persons deprived of their liberty and in danger of reprisal due to the filing of a complaint in connection with his/her detention, in order to secure safety of his/her person;
d) Restraining orders restricting respondent, his/her unit or command from entering the immediate vicinity of the affected area or residence and from searching the victim or his belongings;
e) General writs of injunction ordering the respondent to refrain from committing any and all acts that would tend to cause irreparable harm and have the immediate effect of rendering the investigation of the Commission moot and academic.
Sec. 20. Scope of Legal Measures. – The legal measures under Article XIII, Sec. 18 (3) of the Constitution that may be provided by the Commission shall include the following:
We sought the Committee's unequivocal inclusion of the passage of the CHRP Charter as an urgent measure by Government, to contribute in squarely addressing the unfettered violations of human rights in the country. The Committee has adopted the passage of the CHRP Charter in its concluding observations.
Reaction on select Treaty Body Recommendations
Our task for today is not only to give a reaction but to provide follow through action on the observations by the Committee. What outcome do we desire in this document? What actions do we need to perform in our role as a National Human Rights Institution aside from directing these to government? How do we bring home the human rights in this treaty reporting process?
The Commission has the obligation to popularize the concluding observations and refer these recommendations to all branches of government for their compliance as expressed in administrative, legislative and other measures.
To ensure popularization of duty bearers, we have laid out a mapping of responsible state agencies, and are in the process of referring the specific recommendations to agencies of the executive (or government of the day), committees of the Legislature, as well as to the Judiciary and other constitutional agencies. We will be working with civil society to ensure that the recommendations are acted upon.
In mapping of responsibilities, when one speaks of government, what comes to mind are the three branches of government, the executive, legislative and the judiciary. Human Rights advocates, on the other hand, elaborates the term to direct human rights obligations not merely to the branches of government but more accurately, the 'branches of state responsibility'.
It is in this context that strategic referrals are made in ensuring greater consciousness of human rights obligations by all duty bearers across government structures.
We highlight some recommendations the Commission feels need pointing out as it directly involves our mandate, is strategic in terms of fulfilling the obligations to the Convention or will be amplified in other fora where government will be made to account for its record on ensuring the right to be free from torture and ill-treatment:
On the recommendation to address the concern on the incidences of Torture and ill-treatment and insufficient safeguards during detention
The Commission highlights the importance of addressing the absence of a functional, systematic, and central registration of all detainees, which will facilitate to locate many individuals who have been arrested and have not been able to access their lawyers, relatives, doctors including the assistance of the Commission. This recommendation will be best seen in legislative proposals to unify the penitentiary system under one agency.
Impunity is a major issue raised and largely a result of the absence of a prompt, effective and impartial investigation on allegations of torture, extra-judicial killings and enforced disappearances and the lack of confidence in the Witness Protection program of Government.
The Commission feels that this recommendation is best addressed by looking to the primary obligation of legislating the anti-torture measure which could also provide the strengthening of the Witness Protection Program and the consideration of installing a separate witness program within the Commission as proposed in the CHRP Charter.
Attempts to legislate torture has been on going for the past 6 congresses, the impetus needed for finally ensuring that all acts of torture and ill-treatment have an effective remedy rests in the President’s certification of the bill as ‘urgent’. We expect that this message will be included in the President’s message during her final State of the Nation Address, among other equally important measures in the Human Rights Legislative Agenda.
On harassments and violence of Human Rights defenders and other individuals at risk to include ‘indigenous rights defenders’
The Philippines is set to be considered by another treaty body in August, the Committee on the Elimination of all forms of Racial Discrimination (CERD). This particular recommendation is expected to be amplified by the CERD and has already been highlighted in the concluding observations of the Committee on Economic, Social and Cultural Rights.
On the recommendation to the de facto practice of detention of suspects and concern for detention of children
The Commission highlights the less visible recommendation to give attention to alternatives to deprivation of liberty or imprisonment. This is viewed as one viable solution to overcrowding in detention facilities and will ease conditions that facilitate ill-treatment and torture in detention.
Proposals on alternatives to deprivation of liberty include the enhancement of programs on parole, mediation, community service or suspended sentences. The Commission’s Human Rights Legislative Agenda also proposes the Release on Recognizance Bill which enable persons in pre-trial detention, who cannot afford to pay bail, to avail of their release on recognizance. This recommendation will be addressed to the Department of Justice.
On the recommendation of agencies tasked to undertake prompt, effective and impartial investigations wherein a review of the authorities under which investigations are carried out must be examined to ensure the investigating body’s independence from the police and the military.
Reflecting upon this particular recommendation, the Commission is of the view that further studies must be carried out to determine all the bodies that conduct investigations of police and military misconduct and recommend which structures require adjusting to comply with the independence requirement raised in the observations.
On the recommendation to address the review of Human Security Act, which at this point in time is crucial, as government is poised to make use of this law to address the recent spate of bombings in the South.
The Commission awaits the decision of the Supreme Court on the many petitions questioning the constitutional validity of the Human Security Act.
On the recommendations for the effectiveness and independence of the Commission on Human Rights
We are encouraged by the adoption of the measures that relate to our strengthening including a review of our role under the Human Security Act, and the adoption of the CHRP Charter highlighting the importance of our visitation mandate, particularly, our unhampered and unrestrained access to all detention facilities to include those under the jurisdiction of the military.
The Commission has raised the issue of asking, specifically, the law enforcement agencies with detention facilities, to issue a standing order to allow the unhampered and unrestrained access to all detention facilities. We do hope this will be accepted by government to ensure the full respect and exercise of our constitutional mandate on visitation.
While grateful for the concern shared by the Committee on Section 19 of the 2007 Human Security Act granting the CHRP authority to prolong detention of suspects, which, in our view, compromises our mandate to exercise visitorial powers over jails and detention facilities, the Commission is also of the opinion that the observations should have also raised concern over Section 55 of the HSA on the grant of prosecution powers to the Commission.
In the proposed CHRP Charter, legislators have granted ‘stand-by’ prosecutorial powers in the event that the prosecution agencies refuse or fail to act on cases of human rights violations referred to them.
On Ill-treatment in detention centers and the support to upgrade detention facilities including the passage of the BJMP modernization Act.
While the recommendations to alleviate overcrowding in detention facilities, have been addressed directly to the Bureau of Jail Management and Penology, the Commission has also referred the matter to the government agencies that undertake allocation of budgets, primarily the department of budget in the executive and the committees on public order and on appropriations to aid in the Bureau’s efforts to receive better allocation for their operations.
These types of recommendations have proved effective in bringing into the consciousness of other agencies of government that traditionally will not recognize their role in fulfilling their obligations to human rights in general, and the CAT in particular.
In considering the recommendation on Sexual violence in detention, the situation of provincial jails should be highlighted in line with our efforts to advocate for a unified penitentiary system under one agency. Many provincial jails are not compliant with uniform standards in the treatment of persons deprived of their liberties including basic rules on segregation of male and female detainees, of children and basic gender sensitivity of personnel in their detention facilities.
This particular recommendation is addressed to the Department of Interior and Local Government and all Provincial Governments. Documentation of incidents of sexual violence in detention must be systematically gathered by not only detention facilities but also by our Commission, in line with our visitation mandate.
The Draft Prison Rape Elimination Act will also be included in the Commission’s human rights legislative agenda, and be referred not only to agencies in the corrections pillar of the justice system but also to executive agencies directly involved in addressing women’s rights.
On the recommendation on children in detention and recommendations to provide alternative measures to deprivation of liberty such that deprivation of liberty is used only as a measure of last resort, for the shortest possible time and in appropriate conditions.
The Commission refers the same to the Juvenile Justice and Welfare Council (JJWC) along with the DOJ and DSWD. We have also directed our Child Rights Center (CRC) and the Assistance and Visitorial Office (AVO) to undertake the monitoring of the situation of children deprived of their liberty.
On the Committee’s recommendation on training on the Convention , the Commission has recognized in its submission that, while government has cooperated on human rights education, we share the view that an impact assessment be undertaken.
We view this as an opportunity, on the part of the Commission, to develop and strengthen Human Rights Educational Programmes with law enforcement officials as partners. Such Human Rights Education Programmes should be evaluated as to its efficacy in the application of human rights principles, norms and standards as seen in actual operations of security forces.
Hence, it was emphasized to the Committee to include the need for an impact assessment of the Human Rights Education Programme of the Commission and its integration in the curriculum of law enforcement agencies of Government.
In relation to training, the Commission wishes to highlight the shared view by civil society in respect of the use of a uniform standard in identification and the documentation of torture and ill–treatment through the application of the Istanbul Protocol.
The Commission is addressing this recommendation on the application of the Istanbul Protocol to the Department of Health for their adoption and dissemination to all medical personnel, and hospitals for their action. At the same time, we are continuing efforts to ensure that training on the Protocol will be conducted by our Forensic Office and our partner, the Medical Action Group.
Mainstreaming the Concluding Observations
A strategic convergent point in mainstreaming the Concluding Observations, is the inclusion of these and other concluding observations in the National Human Rights Action Plan (NHRAP) by the executive through the Presidential Human Rights Committee. The NHRAP will ensure that all government agencies are cognizant of the measures to be undertaken with a view to ensure greater compliance with the Convention.
The concluding observations must be taken by all concerned state agencies in a constructive, creative manner. This document can be used as an advocacy tool in promoting certain proposals that not only the Commission has raised in various fora but also as an added impetus to their agencies’ specific concerns.
Viewing the concluding observations as an outline for a report card on the Convention will also be useful as we continue to monitor the compliance by government.