Torturers and their victims: how the Anti-torture law is failing, and why

A Statement by the Asian Human Rights Commission
August 29, 2013

After 22 years of advocacy and lobbying, the Philippines enacted the Anti-Torture Law in November 2009. This law is not an ordinary law. The Philippines became the first country in Southeast Asia to enact a domestic law on torture. In effect, this law means the country commits itself legally to the international community to enforce the principles of jus cogens or peremptory norm. It means freedom from torture is an absolute right.

Nearly four years after the law was enforced, no one from the police, military or public civil service, found to have committed acts of torture, was convicted for violating the Anti-Torture Law. There was also no consideration given to the severity of the physical and psychological pain they inflicted upon their victims. Regardless, of who the torturers were and who their victims were, none of the torture cases resulted in just punishment under this law.

The AHRC has concluded that, in the Philippines, torture forms part of the security apparatus and is used as a method to investigate and to impose social control. It is perceived by the government de facto as needed and required; therefore, whether torture is accepted as a jus cogens norm by the international community or the country's constitution and domestic law, it doesn’t really matter. The police, military and public officials are expected to torture in violation of their suspects' right to due process. The norm has been: not to torture suspects is psychologically unthinkable.

This is not an exaggeration. After examining the cases that the AHRC has carefully documented and analysed after the Anti-torture Law was enforced, a pattern was observed. How and why the practice of torture continues to be part of the fabric of Filipino society with or without a law, is obvious.

No accountability for not investigating

Not to investigate a complaint of torture is very common. The absence of any sort of accountability by investigating bodies is not seen as anything wrong. This would include neglect, failure and inability to investigate as would be expected. By law, any public official could be laid with administrative charges for not performing their duty. But, in practice, not to investigate is the norm, rather than the exception.

If a victim or their family files an administrative case against the officials of the Commission on Human Rights (CHR) or the Public Attorney Office (PAO), for not investigating a complaint, they would be further ignored. A recent example is the public torture committed by a former Mayor of Manila, Alfredo Lim. In this case, it means the torture victims and their families, in practice, have to wait until these agencies are good and ready to investigate and finally do their job.

Excessive delay in investigation

And even when the complaint is investigated, the completion requirement of 60 days for the investigation never happens. The case of Darius Evangelista, a victim whose torture was caught on video in 2010, has taken over a year to be completed. In comparison to other torture cases, the progress of this case is quicker than usual, simply because of public pressure urging that the policemen involved be punished.

In other cases we have documented, from December 2009 onwards, the agencies investigating these cases have yet to conclude any of their investigations. Thus, the precedent established so far on the length of a torture investigation to reach a conclusion, appears to be one year at the earliest. It explains why, the CHR and PAO, could afford to ignore demands to have former Manila Mayor Lim investigated for torture two months ago.

No protection to victims and their families

The lack of complaint of torture does not mean there are no cases of torture. Torture victims and their families choose not to complain for fear of reprisals together with the absence of protection during the process of complaint making. In the case of John Paul Nerio, a boy who was tortured in police custody in December 2010, he and his family decided to withdraw their complaint because of lack of protection.

There is a law which protects witnesses, as envisaged under the Witness Protection, Security and Benefit Act; however, this law only protects witnesses, not the complainants or their family members. Thus, once victims and their families face threats, their protection would still, as it exists in the present structures, come from the institution who committed the torture: the police. In the case of Nerio, it did not work because in his remote area there are only a few policemen. And most of those accused in his case already formed nearly half of the police force in his community.

Distorted interpretation of the crime of torture

Under the Anti-Torture Law, an act of torture is defined in line with the Convention against Torture (CAT), which means inflicting physical and psychological pain on a victim for purposes of extracting a confession. But the investigators, prosecutors and the judges put a personal interpretation on the violation of torture which effectively defeats any sort of remedy to eliminate torture. Some of examples are:

In Nerio's case, the PAO lawyer refused to prosecute this as a criminal case of torture because he could not see any 'political motivation' as to why the police would torture the boy. Torture is political for this lawyer. The boy is an ordinary person who was not involved in any kind of political activism; therefore, for this lawyer, what the victim suffered could not be torture. This is despite compelling evidence that pain was inflicted to force a confession.

In the case of Lenin and others, the prosecutor refused to indict the policemen in a criminal case of torture. The reason they gave was this: the victims, blindfolded when taken into police custody and tortured, failed to see with their own eyes who perpetrated the torture on them. The prosecutor deliberately ignored other materials and circumstantial evidence that could have led to the indictment of the policemen involved in the torture.