[Note] MAG’s Position Paper on the Proposed Law Establishing the National Preventive Mechanism


The Optional Protocol to the United Nations Convention against Torture (OPCAT) establishes “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”.

The setting up of the National Preventive Mechanism (NPM) as one or several visiting bodies designated or maintained, at the domestic level, is in fact already long overdue as the Philippines is obligated to establish this preventive system within one year from its ratification of the OPCAT in 2012.

Nonetheless, the Medical Action Group (MAG) welcomes the on-going legislative process at the House of Representatives for the enactment of the NPM to complement the implementation of Republic Act No. 9745 or the “Anti Torture Law of 2009”. This piece of legislation seeks to prevent the act of torture and other forms of ill-treatment and to complete the necessary protection mechanism to end torture impunity.

While the OPCAT does not specify a specific form or structure for the NPM and the states are free to designate one or several new or existing bodies as their NPMs. It does however provide minimum requirements for the NPM according to which it should be:

  • Independent (its function, personal and institutional capacity);
  • Provided with sufficient resources (financial, human, logistical or material);
  • Have the expertise necessary to fulfil its mandate;
  • Have powers and guarantees, in particular access to all places of deprivation of liberty, information and persons; and
  • Enjoy privileges and immunities (i.e. protection from sanctions and confidentiality of information).

One of the possible organizational forms that the NPM can take is the designation of the Commission on Human Rights (CHR). Under the 1987 Philippine Constitution, the CHR is to ‘exercise visitorial powers over jails, prisons, or detention facilities. But these are merely general visitorial powers. However, the visiting mandate of the NPM is specifically aimed at the prevention of torture and other cruel, inhuman or degrading treatment or punishment, and has particular features prescribed by the OPCAT for unrestricted and unannounced visits. Thus, the NPM should be proactive and non-adversarial in its approach.

The MAG is fully supporting the proposed set up reflected in House Bill No. 5193 authored by Reps. Kit Belmonte and Barry Gutierrez for the establishment of the NPM as an attached agency to the CHR. An attached body to the CHR can make possible the diversity of expertise, but also gender balance and the adequate representation of ethnic and minority groups.

Nonetheless, whatever form the NPM may take, what is essential is that the NPM can carry out its mandate to conduct regular visits to all places of detentions without restriction. Their visits should lead to reports and concrete recommendations to improve the protection of persons deprived of liberty. After which, an annual report on their activities and their findings must be published after consultations with relevant government agencies and non-government organizations. The NPM can also give comments on relevant laws and regulations and propose for necessary reforms.

However, the setting up of the NPM should not be limited to legal consideration as it also involves health issues. The MAG believes that the participation of medical and health professionals in these visiting mechanisms is essential to address health issues related to torture and ill-treatment, examines and gives treatment to detainees, recommending actions to be taken to improve the treatment of detainees, to evaluate the health system and to assess the impact of general conditions of detention on the heath of detained population.

The United Nations Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (or ‘Istanbul Protocol’) was developed to specifically use for torture documentation using scientific evidence based gathering. The Istanbul Protocol is now an internationally recognized guideline for medical and legal experts. It can be used as a tool to gather and document accurate and reliable evidence in connection with cases where torture is alleged and to help practitioners to assess the consistency between allegations and medical findings.

The medical professionals are in essence a key to prevent torture impunity. The medical documentation and medico-legal reports (MLR) that they write are important facts that can be used as pieces of evidence in legal or administrative proceeding for prosecuting torture cases and facilitating redress and reparation for survivors. It is therefore important to increase the capacity of medical practitioners in evaluating the physical and medical conditions of persons deprived of liberty using of the Istanbul Protocol. Thus, the Department of Health (DoH) needs to take an active role in the work of the NPM.

While the Republic Act (RA) No. 9745 or Anti-Torture Law has a number of strong provisions relating to victim’s access to a physical, medical and psychological examination, but until now, torture victims still rarely have access to a legal counsel and a medical doctor immediately after arrest and during detention. And even if investigating authorities guarantee the access to medical examination, the lack of formal knowledge and capacity of the medical doctors who are often among the first persons to come into contact with torture survivors creates a medical complicity as some doctors don’t perform the medical examination properly and diligently either due to low awareness on torture documentation or because of the intimidation or the fear of reprisal from the government authorities.

Thus in many cases, the investigations concerning allegations of torture are either completely unreliable. In some cases, medical examination is only allowed after inquest as torture victims were only seen by doctors assigned to any police or military health centers or to government hospitals who often just do cursory “check list” physical examinations with no inquiries about how torture marks may have been inflicted and the medical certificates have no reference to torture and the need for medical treatment.

Prevention of torture must also go hand in hand with prison reform. Prison condition as MAG observed is the most punishing aspect of doing time in jails. The general prison conditions are not only found dangerous to health and to human life. It breeds diseases, breaks down of one’s sanity and exacerbates tensions among inmates. Sexual violence and abuse are also being reported rampant in the correctional and custodial system. This is despite the passage of the Republic Act 10575 or the Prison Modernization Act of 2013. Major reforms must be undertaken that could give prison inmates a chance at rehabilitation and a meaningful life after imprisonment.

MAG has been advocating for prison reform for the past three decades. We have in fact submitted a recommendation to the Office of the Executive Secretary in 2011 on the Amended Guidelines for Recommending Executive Clemency particularly on Section 3 regarding Extraordinary Circumstances. We then proposed that:

  1. for humanitarian reason, to lower the age cut-off requirement to sixty (60) from seventy (70) years old; and
  2. for medical reason, to include terminally ill prisoners and debilitating diseases.

This as we argued conforms to the United Nations Standard Minimum Rules for Treatment of Prisoners.

For the NPM to effectively work, the Subcommittee on the Prevention Against Torture has given special value on civil society’s involvement. Not only that individuals working for civil society members should be give a place in the NPM but the appointment procedures should be made transparent, inclusive and participatory.

For MAG, the creation of the NPM should not be considered merely a “quick fix solution” but rather should be given careful review of the its mandate, jurisdiction, independence, membership, powers and responsibilities and working methods, to ensure that it fully complies with the international human rights standards.

The work of the NPM should go beyond regular visits and recommendations by conducting awareness-raising, training, or even launching of localized public inquiries, consultation and coordination meetings on how to address torture and ill-treatment and the general conditions of detention.

Ending impunity requires accountability. But it can start from preventing the commission of the human rights violation through collaborative efforts.  

Medical Action Group

Note: MAG’s position paper was presented during the Technical Working Group Meeting of Committee on Human Rights, at the House of Representatives on 10 February, 2015.

 

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[Literary] A Plea to A Torturer: A Poem


I am not a toy,
You can enjoy
Stripping me naked
helpless and scared…

I am not a toy,
You can enjoy
treating me as a play thing.
as if I have no feeling…

I am not a toy
You can enjoy
Putting a gun on my head
And make me filled with dread…

I am not a toy
You can enjoy
Asking me a million times
To confess for uncommitted crime…

I am not a toy
You can enjoy
Laughing at me
As I beg for mercy…

I am not a toy
You can enjoy
Putting my head into a pale of water
Or electrocute me to make me whimper…

I am not a toy
You can enjoy
Punching me in the face
And tease me as I grimace…

I am not a toy
You can enjoy
Listening to my scream
As your cigarette burns my skin…

I am not a toy,
You can enjoy
Locking me up in a dark, cold room
To make me feel how to lie in a tomb.

I am not a toy
You can enjoy
Imposing your authority over me
And seeing how I endure your cruelty…

I am not a toy
You can enjoy
Because I am human being too
Just like everyone including you…

Stop torture

Photo courtesy of www.amnesty.org.uk

[Reflection] MAKING HUMAN RIGHTS MORE THAN A VIRTUAL REALITY By Darwin Mendiola


Five days ago, we commemorated the International Human Rights Day. By just remembering the day was a reason enough to celebrate, but it also gave us something to think about.
In recent years, we have all witnessed  the transforming power of the internet in advancing human rights issues. It does not only become an avenue for freedom of expression and opinion. But it also provides a space for ordinary people to speak up and claim for their rights.
 
It gives the workers a place to show their plight from the brunt of unfair labor practices and job insecurity here and abroad. It gives a voice to the cry of farmers for genuine agrarian reforms. It exposes the detrimental ecological effect of mining on land and water resources and its induced massive displacement of farming communities.  It affords the women’s right of choice and access to reproductive health. It provides attention to the right for sexual orientation and gender identity against any forms of discrimination. It makes us more aware of the rights of children even those who are in conflict with the law. It condemns at the highest level the act of torture, enforced disappearance and extrajudicial killings. It reproves inhumane and violent demolition of informal settlers. It provides a forum to demand for a guarantee of standard of living with adequate social services free from corporate greed.
 
HRONLINEPH.com was born out of this necessity.
 
While internet rights are already considered basic human rights and fundamental freedoms, yet they are increasingly at risk. Not only for the fact that people anywhere and everywhere who speak up against any forms of abuses, injustices and violence are often placed in danger.  Access to internet in some part of the globe remains censored or banned. Even in democratic countries like the Philippines, there are already attempts to infringe the right to privacy in communications that consequently threaten the enjoyment of the right to freedom of expression and opinion. The recent ruling of the Philippine Supreme Court upholding the decision to prevent two students of St. Theresa’s College in Cebu from graduating because of the sexy photos posted in their facebook account, creates that chilling effect.
 
While we do recognize that with every right, there is a corresponding responsibility, Though freedom requires self regulation, we must intelligently use the internet and technology to continuously inform, inspire and mobilize people to effect real change.
 
We must bear in mind that human rights are our birth right. The rights we have offline are the same rights we must have online.
 
Let us all work together to make human rights a reality.
internet right
Photo courtesy of www.slideshare.net

[Reflection] Pagpupugay at Pasasalamat sa mga Bayani at Martir ng Batas Militar: A Review


Heroes are made not born.

They are those who let no obstacle prevent them from pursuing the values they have chosen. Some simply happened to find themselves at a crossroads, confronted with the turbulent events of their time but chose to take a path less traveled and even offering their own lives.

One needs not to be extraordinary to do heroic deed. Any Juan dela Cruz, Maria or Jose – workers, farmers, fisherfolks, students, professionals, church people, informal settlers or street hawkers can make a big difference.

But there are many of them who remain anonymous until now. They are the NAMELESS —whose deeds are not known to many. Remembering them may not be enough. But reliving their legacies in us is one way to honor them.

And this is what the Task Force Detainees of the Philippines together with the NAMELESS HEROES AND MARTYRS, INC. and the DAKILA Collectives admirably did when they paid tribute to the HEROES and MARTYRS of MARTIAL LAW on September 30, 2014 at the Aldaba Recital Hall, University of the Philippines-Diliman.

The event brought together Martial Law heroes and the new generation of human rights defenders to commemorate the 42nd Anniversary of the Declaration of Martial Law through a matinee of songs, dances and theatrical play under the brilliant direction of UP Prof. Apolonio Chua.

The songs of protest like Batingaw, Sangandaan, Patak ng Ulan at Huling Awit were once again resonated on the stage by Color It Red vocalist Cooky Chua and the progressive labour theater group, Teatro Pabrika to awaken in the audience the Filipino spirit of patriotism.

May Tibak At May Tibak and Buhay Na Inalay Sa Bayan from LEAN: The Musical which run deep into our Filipino consciousness and stir intense emotions of sensitivities were given new life through the creative dance performances of the Collective Arts of Students and Thespians (CAST) from University of Makati by efficaciously translating the sufferings and struggle of the Filipino people under Martial law into series of movement and dramatic expression.

But what makes the event different from the previous commemorations is that it set the stage for the Reader’s theatre where excerpts from selected literatures were read by character roles with no needs for costumes and props for the audience to relive the social upheavals of that time that gave rise to popular discontent and resistance.

Tutubi, Tutubi ‘Wag Kang Magpahuli sa Mamang Salbahe’ (Dragonfly, Dragonfly, Don’t Allow Yourself to Get Caught by a Bad Guy) by Palanca awardee Jun Cruz Reyes, gives a satirical account of the irrationality of the power structure and how a high school student’s curiosity has turned into a conviction of joining the underground movement.

The “Written to Myself During a Fit of Depression” by former political prisoner, Doris Baffrey, a letter she wrote for herself relating her traumatic experiences while languishing in jail for almost five years which left a thick scar or welt on her very existence in the same way that many survivors of martial-law were plagued by intense, recurring nightmares. Ms. Baffrey was implicated in the PICC bombing during the American Society of Travel Agents Convention in 1980.

A more vivid account of torture was best described in the poem, ‘TORTYUR- Sa mga Kuko ng Karimlan’ written by another Palanca awardee and political activist, Levy Balgos dela Cruz which shows how torture is being used as a form of punishment until it breaks the person’s will to live.

The agony of a wife who has to pretend as a cousin of her husband in order to claim his remains after he was summarily executed by the military is given a human face and heart in the play, ‘Buwan at Baril’ by Chris Millado.

The family memoir, ‘Subversive Lives’ by the Quimpos reminds us of the personal costs at best illuminates an on-going struggle mediated by familial experiences and the sacrifices of those who joined the movement.

We owe it to those who stood and fought against the dictator in order for freedom and democracy to live. Their sacrifices and love for country are the reasons why the “selfie” generation today have the freedom to click and post whatever they want in social media. But lest we forget that the responsibility to make the country freer, humane and just now rests on our shoulders.

Salute to the Unsung Heroes of Martial Law!
Kudos to the Task Force Detainees of the Philippines!
Never Again to Martial Law!

Pagpupugay sa mga Bayani ng Martial Law

[Document] Right to Rehabilitation


This Discussion Paper was made and published by REDRESS in 2009 with the purpose of clarifying the reasons why rehabilitation, despite beingexpressly incorporated in different international instruments such as CAT, the ICPPED and the Rome Statute, remains an elusive form of reparation. Certainly, and as is the case with many other rights/obligations under international law, problems of implementation and enforceability are partly the result of lack of political will of states.

                                                                                                                                                              – REDRESS

REDRESS is an international nongovernmental organization committed to obtaining justice for torture survivors. The objectives and working methods they used focus on assisting survivors to pursue and secure legal remedies and developing the means to ensure compliance with international standards, and in particular their right to reparation. REDRESS consider IT fundamental to advance the understanding of the meaning of rehabilitation given that it is a crucial reparation measure for torture survivors and their next of kin.

For more info, visit REDRESS website: http://www.redress.org/

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The Right to Rehabilitation

[Document] Healthcare for Torture victims


Healthcare for Torture Victims

Presented by Darwin Mendiola

during the Department of Health Visayas Health Cluster Meeting

on August 15, 2014 at the Hotel Essencia, Dumaguete City, Negros Oriental.

 

Health care for torture victimsHealth care for torture victims