Wednesday, October 7, 2009
UATC Position Paper Ratification and Implementation of the OPCAT
We, the member organizations of the United Against Torture Coalition Philippines (UATC), a broad-based coalition of organizations and individuals that work together against the use of torture in the Philippines Declare and Assert the following in relation to the Philippines’ adhesion and implementation of the Optional Protocol to the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (OPCAT):
A straightforward system
The OPCAT establishes a system of regular visits to places where individuals are deprived of their liberty. This system employs two visiting bodies, one is the Sub-Committee for the Prevention of Torture (SPT), an international body that is composed of 10 experts and already conducting its work since January 1, 2007. Two is the National Preventive Mechanism (NPM), which will be composed of suitably qualified independent experts that is to be set up by the state once it adheres to the OPCAT.
Basically, these bodies will conduct regular visits to places of detention. Subsequent to their visits, these bodies will submit their recommendations to relevant state authorities based on their observations, findings and assessment. They shall then enter into a dialogue with relevant state authorities on the concerns. The state is then required to implement these recommendations in cooperation with these bodies.
This basic framework of operation, according to Article 4 of the Protocol aims to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment. This is an obligation the Philippine government has had since 18 June 1986. The OPCAT bodies’ approach is to provide useful, practical and expert advice, tailored to the state’s circumstances, and forms the basis for institutional reform.
Regular visits to places of detention have been proven to be one of the most effective ways to prevent torture and ill-treatment. The work of the ICRC, the European Union’s CPT and the work of other visiting bodies elsewhere in the world have demonstrated the significance of preventive visits.
Apart from producing a deterrent effect, regular visits are also geared towards systematically identifying necessary changes that serve as instruments for reforms in policies, procedures, practices and even on laws governing the treatment of individuals deprived of their liberty and the conditions within detention facilities.
The OPCAT establishes a system of open and constructive dialogue between parties involved
The visiting bodies under the OPCAT are required to carry out their work and deal with the concerned state agencies in a distinctly placid and modest manner. It is clear under article 2 paragraph 3 of the OPCAT that confidentiality of communication with the state is a key principle and that the instrument does not establish a system for complaints or condemnation. It is a system of open and constructive dialogue between the Subcommittee, the NPM and the state party.
The Sub-Committee and the NPM rely on mutual trust and constructive dialogue rather than on an antagonistic or condemnatory attitude. These principles are explicitly safeguarded by specific provisions within the OPCAT. The Subcommittee and the NPM will make recommendations so that the state will be able to devise sound strategies, and not to discredit the state or its institutions.
OPCAT Implementation has no pre-requisites
The physical improvement of facilities is but a fraction of what needs to be done to eradicate ill-treatment and torture. It may take several years of cooperation between the Subcommittee, the NPM and the Philippine Government before we can see an evident impetus for change.
When the Subcommittee and the NPM start carrying out their visits, they do not expect to find perfect detention facilities and do not anticipate ill-treatment to disappear overnight. Realistically, they expect many problems wracking the system.
The objective sought by the SPT and the NPM is to progressively eradicate torture and ill-treatment, and together with relevant authorities, identify practical ways to achieve this objective within the national context.
The recommendations made by the visiting bodies need to be substantiated, pragmatic and realistic in order for authorities to implement them. There is no need to improve conditions of jail facilities prior to OPCAT’s implementation or fear any criticism from visiting bodies no matter how bad these conditions are.
OPCAT Implementation is possible within a year time frame
On September 23, 2008, Executive Secretary Eduardo Ermita announced the possibility of the Philippines to opt for a deferment of its obligations under Articles 3 or 4 of the OPCAT as made available to states.
The Philippine Government has not indicated which article/s it plans to defer but has made two reasons why it is considering a declaration to opt-out. First is to make the necessary improvements of conditions in places of detention and second, to harmonize domestic laws in order to conform to the OPCAT.
Member organizations of the United against Torture Coalition which have long been working for the advancement of the detainees’ and prisoners’ rights, as well as of prison reform have conducted consultations on preparations needed for the establishment of the National Preventive Mechanism. The coalition asserts that the fine-tuning of laws to accommodate the operations of an NPM in the Philippines will take less than a year if taken seriously by the government. This is due to the fact that the Commission on Human Rights of the Philippines, the institution which most likely will play a central role in the NPM system, has a well established organizational structure already.
Apart from a well established National Human Rights Institution, the Philippines is blessed with a wide array of dedicated organizations that have been conducting visits to places of detention in order to defend and promote the rights of individuals deprived of their liberty for several decades. In addition, there are enough international human rights institutions, including the Subcommittee on Prevention which are very willing and ready to assist us in our efforts. We have enough intellectual resources, experience and available support to be able to devise an NPM system that is best suited for the Philippines well within the timeframe specified by Article 17 of the OPCAT.
With the right political resolve, tweaking the necessary domestic policies and laws to accommodate the new NPM’s operations and the minimal requirements of the SPT when it comes to visit is very much doable and worth it.
Let us utilize the assistance offered by the Subcommittee on Prevention and the National Preventive Mechanism without delay
If we are capable of pursuing changes in the conditions in places of detention as well as the systems, policies and laws which govern the operations of these facilities ourselves, we could have done so by now. The obvious truth is that, we cannot.
Reality wise, we need the assistance of experts dedicated in fields relevant to the treatment of persons deprived of their liberty. What makes the members of the SPT suitable to assist us are due to the fact that they have made this specific concern their life’s work. If indeed, we are already tired of the deplorable conditions of our detention facilities, let us make immediate use of what is being made available to us to obtain the changes that we want.
If we have every intention to follow viable recommendations made by these bodies and the wholehearted desire to bring about humane living conditions for those behind bars, then we need not have any worries in implementing the OPCAT promptly and to the fullest. Let us demystify the misconception that ratifying or implementing the OPCAT the soonest may cause a predicament for us.
Recommendations for the advancement of the OPCAT
On the OPCAT:
1. For all branches of the government, especially the Presidential Human Rights Committee (PHRC) and the Senate Committee on Foreign Relations to proactively pursue the immediate ratification of the OPCAT.
2. Declare a timeframe for the ratification of the OPCAT as requested by the Committee against Torture in the Advanced List of Issues no. 35.
3. With due diligence, work on the establishment of an NPM upon the Philippines’ adhesion to the OPCAT
4. Invite the members of the International Subcommittee on Prevention to the Philippines upon adhesion to the OPCAT to seek assistance in the development of the NPM, and to further build a good standing relationship with the body.
5. Recognize the authority of the SPT to conduct visits to places of detention within one year upon the Philippines adhesion to the OPCAT.
On the NPM:
1. Formally institute the Philippine OPCAT working group for the duration of the establishment of the NPM
2. Ensure that the POWG membership is well balanced by ensuring that individuals from suitably qualified independent organizations are represented alongside the Commission on Human Rights and government agencies
3. Guarantee a formulation of an appropriate Action Plan for the establishment of the NPM through transparent, participative and consultative means and make certain that this is included in the National Human Rights Action Plan.
4. Ensure that the POWG is able to consult and seek assistance from the SPT as it conducts its work
5. Ensure that the POWG has all the necessary resources to conduct its work
6. Ensure the POWG’s continued research work to carry out the implementation of the Action Plan for the establishment of the NPM.