Problems in enforcing Anti-Torture and Cybercrime Laws

A Statement by the Asian Human Rights Commission
January 17, 2013

On January 15, the Supreme Court of the Philippines (SC) heard oral arguments questioning the constitutionality of the Cybercrime Prevention Act of 2012 and its conformity to international norms and standards. The Cybercrime Prevention Act is one of the many unprecedented pieces of legislation in the Philippines in recent years. The Cybercrime Law is expected to protect private individuals from cyber bullying, protect women and children from being sexually trafficked online, and so on. Due to questions raise as to its constitutionality, the SC issued an order suspending its implementation.

Apart from the Cybercrime Law, the Anti-Torture Act of 2009, the first domestic law criminalizing torture in Southeast Asia and the Anti-Enforced Disappearance Act of 2012, the first law criminalizing enforced disappearance in Asia are some examples of landmark human rights legislation. The question as to the Cybercrime Law, however, is whether part of its provisions, notably punishments for libel, is in line with the Constitution and international human rights standards, as we have stated earlier. The Cybercrime Law attracted protest as it borders on the risk of suppressing freedom of expression in the process of protecting rights of individuals.

The AHRC has observed that in numerous cases, such as the prosecution of torture case, the interpretations of the law are problematic when the prevention and punishment of crimes are involved. In torture cases, the police, public attorneys, prosecutors and judges, become the obstacles in the effective implementation of the Anti-Torture Law. Thus, despite the clarity of the law on torture – since there was no challenge raised of its constitutionality in court – this did not prevent inconsistencies and subjective interpretations of the law preventing prosecution of the crime.

For example, in the torture case of five men in San Fernando City in 3 August 2010, the prosecutor rejected their complaint of torture for reasons that they could not have possibly identified the perpetrators because they were blindfolded. The prosecutor exonerated the policemen from torture because the five victims have failed to "positively identify" their torturers. The prosecutor also disregarded the compelling medical and forensic evidence that they were tortured and that they were in police custody on the day on which they claimed to have been tortured.

In another case, a public attorney investigating the case of victim John Paul Nerio, a boy whom policemen tortured in December 11, 2010 in Kidapawan City, did not prosecute the policemen for torture but for child abuse. He argued that Nerio's complaint does not constitute a violation because it is not political in nature. Nerio is an ordinary teenager with no involvement in political activities. The public attorney disregarded the information that policemen have, in fact, extracted a confession from him when they arrested, detained and assaulted him in their custody. The AHRC argued otherwise and sent numerous appeals to the prosecution.

To have the clarity on the meaning and interpretation of the law is very important. But the challenge is the enforcement of the law and how the enforcers of the law – the police, the prosecutors and court judges – interpret the law in their daily work. If freedom from torture as an absolute right could hardly be adequately implemented despite its clarity, it raises questions as to whether the government's institutions could protect any other rights. None of those charged and prosecuted for torture were punished. This will certainly be the challenge in the implementation of the Cybercrime Law.

There is the assumption that the codification of rights in the Constitution and Statutes itself serves as protection. However, in our experience, while they offer some assurance there is no guaranty of the protection of rights. Most of these right remains on paper.

The case of the Abadilla Five is an example to this. In a 13-page legal critique we exposed that local courts disregarded Constitutional and Statutory rights. The court justified the breach in fundamental rights that protect individuals from arbitrary arrest and detention and torture by invoking jurisprudence contradictory to the Constitution. Also, the SC's decision upholding the conviction of the Abadilla Five in this case give rise to questions on consistency and legal certainty in the application of the jurisprudence by the court in adjudication of cases, notably in evaluating forensic evidence and credibility of the witness in court.