Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City, Metro Manila

FIFTEENTH CONGRESS

First Regular Session

House sit No.__2824

Introduced by AKBAYAN Representatives Walden F. Bello and Kaka J. Bag-a0

EXPLANATORY NOTE

This bill seeks to amend Republic Act No. 9745, otherwise known as The “Anti-Torture
‘Act of 2009,” so that its definition of “torture” and consequent application are not
limited to state-agent perpetrators and their victims. This amendment will harmonize its
definition of torture with that in the newer R.A. No. 9851, the “Philippine Act on Crimes
Against International Humanitarian Law, Genocide, and Other Crimes Against
Humanity,” align the Philippine Anti-Torture Act with the latest developments in
international criminal law and uphold the constitutional principle of equal protection of
the law to victims of torture committed by non-state actors. More fundamentally,
however, this will align the law with the factual reality that torture is also actually
perpetrated by non-state actors, especially non-state armed groups.

The experience in recent Philippine history most relevant to this were the anti-
infiltration purges in the Communist Party of the Philippines-New People’s Army (CPP-
NPA) during the 1980s, in which at least a thousand or so of its cadres, members,
commanders and fighters were tortured, forcibly disappeared or extra-judicially killed
within the CPP-NPA in a number of regions, most notably Mindanao (“Kompanyang
Ahos”) and Southern Tagalog (“Oplan Missing Link”). The latter purge was notably
documented in a book entitled To Suffer Thy Comrades: How the Revolution Decimated
Its Own (Manila: Anvil Publishing, Inc., 2001) written by one of its survivors, now NGO
worker Robert Francis 8. Garcia. This has also been documented internationally by the
international NGO Redress Trust-London in a major policy study, Not Only the State:
Torture by Non-State Actors - Towards Enhanced Protection, Accountability and
Effective Remedies. Published in 2006, it acknowledged the Philippine inputs,
Particularly from the case of the CPP-NPA purges.

R.A. No. 9745's definition of torture and its application, limited to that “inflicted by or at
the instigation of or with the consent or acquiescence of a person in authority or agent
of a person in authority”, does not provide equal protection of the law to victims of
torture perpetrated by non-state actors. From the point of view of the victims, there is
no difference whether it is committed by a state or non-state perpetrator. The
proposed amendment of R.A. No. 9745's definition to remove that quoted qualification,
therefore, corrects this constitutional infirmity in the law.

R.A. No. 9745's definition of torture follows that of the 1984 UN Convention Against
Torture (CAT), But there has since been a new and improved definition of torture in
international criminal law, namely that found in the 1998 Rome Statute of the
International Criminal Court (ICC Statute): “the intentional infliction of severe pain or
suffering, whether physical or mental, upon a person in the custody or under control of


the accused.” The beauty of this simple definition is that there are no more
qualifications not only as to perpetrator but also as to purpose (e.g. “for such purposes
as obtaining from him/her or a third person information or a confession; punishing
him/her for an act he/she or a third person has committed or is suspected of having
committed; or intimidating or coercing him/her or a third person; or for any reason
based on discrimination of any kind”). The simple definition of the 1998 ICC Statute,
therefore, makes for much wider application and consequently protection of the law.

It is that simple definition of torture that is adopted in the new R.A. No. 9851 as among
the acts that may be constitutive of war crimes and other crimes against humanity, with
the addition of one particular form of torture: “the intentional infliction of severe pain
or suffering, whether physical, mental or psychological, upon a person in the custody or
under control of the accused.” But it is a less than ideal situation that two Philippine
statutes, R.A. No. 9745 and R.A. No. 9851, have two different definitions of torture,
even if these are applied to two different situations. These definitions will have to be
harmonized one way or the other. We submit that R.A. No. 9745 should follow R.A. No.
9851 on this, considering among others that R.A. No. 9851 is not only the newer or later
law but also the law aligned or informed by the latest developments in international
criminal law.

Even the 1984 CAT, which R.A. No. 9745 seeks to implement, provides in its Art. 1(2),
that its definition of torture is “without prejudice to any international instrument or
national legislation which does or may contain provisions of wider application.” Thus,
without prejudice to the 1998 ICC Statute and R.A. No. 9851 which contain definitions of
wider application. As regards state agents having the higher responsibility to uphold the
rule of law, such official capacity can be treated as an aggravating circumstance, but not
an element of the crime that would leave out non-state perpetrators — and their victims.
In the final analysis, it is the victims ~- the rights-holders — and their human rights that
matter. “All human rights for all,” including the victims of torture.

The bill also would amend the definition of “other cruel, inhuman and degrading
treatment or punishment” accordingly.

Thus, the soonest approval of this bill is earnestly prayed for.

Khel

WALDEN F. BELLO



Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FOURTEENTH CONGRESS
First Regular Session

HOUSE BILL NO. 2824

Introduced by AKBAYAN Representatives Walden F. Bello and Kaka J. Bag-ao

AN ACT
AMENDING REPUBLIC ACT No. 9745, THE “ANTI-TORTURE ACT OF 2009”

Be it enacted by the Senate and House of Representatives in Congress assembled:

SECTION 1. Amendment to Declaration of Policy. - Paragraphs (b) and (d) of
Section 2 of Republic Act No. 9745 are hereby amended to read as follows:

“Sec. 2. Declaration of Policy. - \t is hereby declared the policy of the
State:

XXX

“(b) To ensure that the human rights of all persons, including
suspects, detainees and prisoners are respected at all times; and that no
person placed under investigation or held in custody OR UNDER THE
CONTROL of any person [in authority or agent of a person in authority) shall
be subject to any physical, psychological or mental harm, force, violence,
threat or intimidation or any act that impairs his or her free will or in any
manner demeans or degrades human dignity;

XXX

“(d) To fully adhere to the principles and standards on the absolute
condemnation and prohibition of torture as provided for in the 1987
Philippine Constitution; various international instruments to which the
Philippines is a State party such as, but not limited to, the International
Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of
the Child (CRC), the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Convention Against Torture
and All Forms of Cruel, Inhuman and Degrading Treatment or Punishment
(CAT); and all other relevant international human rights AND INTERNATIONAL
HUMANITARIAN LAW instruments [to which the Philippines is a signatory).


Sec. 2. Amendment of Definitions of “Torture” and “Other cruel, inhuman and
degrading treatment or punishment.” - Paragraphs (a) and (b) of Section 3 of
Republic Act No. 9745 are hereby amended to read as follows:

“Sec. 3. Definitions. — For purposes of this Act, the following terms
shall mean:

“(a) ‘Torture’ refers to [an act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him/her or a third person information or a
confession; punishing him/her for an act he/she or a third person has
committed or is suspected of having committed; or intimidating or coercing
him/her or a third person; or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a person in authority or agent of a person in
authority.] THE INTENTIONAL INFLICTION OF SEVERE PAIN OR SUFFERING,
WHETHER PHYSICAL, MENTAL, OR PSYCHOLOGICAL, UPON A PERSON IN THE
CUSTODY OR UNDER THE CONTROL OF THE ACCUSED. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions,

“(b) ‘Other cruel, inhuman and degrading treatment or punishment’
refers to a deliberate and aggravated treatment or punishment not
enumerated under Section 4 of this Act, inflicted [by a person in authority or
agent of a person in authority against a person under his/her custody] UPON
A PERSON IN THE CUSTODY OR UNDER THE CONTROL OF THE ACCUSED,
which attains a level of severity causing suffering, gross humiliation or
debasement to the latter.”

Sec. 3. Amendment to Sec. 4 — Paragraphs (a) and (b) of Section 4 of Republic
Act No. 9745 are hereby amended to read as follows:

“Sec. 4. Acts of Torture. — For purposes of this Act, torture shall
include, but not be limited to, the following:

“(a) Physical torture is a form of treatment or punishment inflicted by
a person [in authority or agent of a person in authority] upon another in
his/her custody OR UNDER HIS/HER CONTROL that causes severe pain,
exhaustion, disability or dysfunction of one or more parts of the body such
as:

XXX

“(b) ‘Mental/psychological torture’ refers to acts committed by a
person [in authority or agent of a person in authority] UPON ANOTHER IN
HIS/HER CUSTODY OR UNDER HIS/HER CONTROL which are calculated to


affect or confuse the mind and/or undermine a person's dignity and morale,
such as:

XXX,

Sec. 4. Amendment to Sec. 5 — Section 5 of Republic Act No. 9745 is hereby
amended to read as follows:

“Sec. 5. Other Cruel, Inhuman and Degrading Treatment or
Punishment. ~ Other cruel, inhuman and degrading treatment or punishment
refers to a deliberate and aggravated treatment or punishment not
enumerated under Section 4 of this Act, inflicted by a person [in authority or
agent of a person in authority] against another person in HIS/HER custody OR
UNDER HIS/HER CONTROL, which attains a level of severity sufficient to cause
suffering, gross humiliation or debasement to the latter. x x x”

Sec. 5. Addition to Penalties. ~ Sec. 14 of R.A. No. 9745 is hereby amended by
adding the following last paragraph, to read as follows:

“Sec. 14. Penalties. ~xxx

XxX

“WHERE THE OFFENDER WAS A PERSON IN AUTHORITY OR AGENT OF
‘A PERSON IN AUTHORITY AT THE TIME OF THE COMMISSION OF THE CRIME,
THIS SHALL BE TREATED AS AN AGGRAVATING CIRCUMSTANCE, REGARDLESS
OF WHETHER ADVANTAGE WAS TAKEN BY THE OFFENDER OF HIS/HER
PUBLIC POSITION.”

Sec. 4. Separability Clause. ~ If any provision of this Act is declared invalid or
unconstitutional, the other provisions not affected thereby shall remain continue to
be in full force and effect.

Sec. 5. Repealing Clause. ~ All laws, decrees, executive orders or rules and
regulations contrary to or inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.

Sec. 6. éffectivity. — This Act shall take effect fifteen (15) days after its
publication in the Official Gazette or in at least two (2) newspapers of general

circulation.

Approved,