ANTI-TORTURE ACT OF 2009

REPUBLIC ACT 9745

EXPLANATORY NOTE

Republic Act 9745, otherwise known as the “Anti-Torture Act of 2009,” was enacted “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 of any
person in authority or, agent of a person authority shall be subjected to physical, psychological or
mental harm, force, violence, threat or intimidation or any act that impairs his/her free will or in
any manner demeans or degrades human dignity.”

The law recognized torture as a separate crime. Aside from making the perpetrator a
convict, it also guarantees that victims of torture are protected under the law by aiding them in
seeking redress.

No matter how noble the purpose is, however, there are still challenges that the law faces
especially on its enforcement and implementation. From the time that it was enacted, only a few
cases have reached the prosecution stage, thereby reducing the number of recorded cases involving
torture. But in the Philippines, news and records have revealed that there are a lot of torture cases
that have happened in the past, but the following contributed to the low number of convicts and
long criminal procedure, as recorded: delayed and ineffective investigations; problems in
identifying and locating perpetrators; access to prompt, thorough, impartial and independent
medical evaluation; and the risk of reprisals against victims, witnesses and investigators are just
some of the obstacles in the enforcement of RA 9745.1

So far, only three cases have been documented with regard to the violation of RA 9745.
The cases of Lenin Salas, Ronnel Cabais, and Abdul Ajid, even though differently situated,
proceeded with delays in their investigative processes alone, despite the 60-day rule provided for
in the law. These delays entail unfortunate consequences because the case will mostly rely on
physical evidence, which could diminish over time. Further, witnesses may lose their memory and
recollection of the events that transpired, and offenders, especially those with power, may be
extended the time and opportunity to cover up their tracks.2

As regards the identification and location of perpetrators, the common use of blindfolding,
in itself constituting torture under the Act, effectively prevents victims from visually identifying
their perpetrators. In addition, the military is always reluctant to cooperate with the prosecutor’s
office in producing alleged perpetrators within their ranks who have been identified by name and
association.3

1
Torute and Ill-Treatment in the Philippines - Implementation of the Anti-Torture Act, available at
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/BRCMAG_IRTC_Philippines_HRC106.pdf (last accessed Oct.
22, 2017), p. 5.
2
Id at p. 6.
3
Torture and Ill-Treatment, Id at p. 7.
 The Ajid case perfectly illustrates that the problem of identification of perpetrators is also
present in the CHR investigation. In its resolution, two senior officers, Col. Alexander Macario
and Capt. Arvin Llenaresas were excluded from the charges under the principle of command
responsibility as the resolution stated that “they (the Respondent Senior Officers of the military)
were able to substantially explain their non-participation in the acts complained of and they neither
consented nor had the knowledge of the alleged acts.” It should be noted, however, that the
principle of command responsibility, if applied in accordance with its purpose, would mean that
the military commanders should facilitate the identification and location of the perpetrators, and
not use it as a defense.4

Prompt, thorough, impartial and independent medical evaluation. The Anti-Torture Act
specifically provides that the victims be provided with these standards of medical evaluation.
However, these are not complied with, hence, it also affects the outcome of the cases filed under
the Anti-Torture Act.

There are only few health professionals in the Philippines who have the necessary skills to
thoroughly document torture and ill-treatment activities. More often than not, health professionals
would avoid to document such activities due to fear of reprisals from the accused. Up to this date,
there is no proper procedure or standard to follow when taking medical evaluation of persons who
allege or display signs of torture or ill-treatment. Considering that proper medical evaluation would
be conducted, it would be done by health professionals affiliated with NGOs; it would always be
with significant delays. Because of these delays, the result is a lesser quality of evidence and also
the initiation of investigative steps is delayed.

In the Cabais case, the family members report that they have been threatened and harassed
several times and that the Rehabilitation Staff (Social Worker) have been sent threats through text
messages and was being followed by suspicious strangers. The victim and their families, support
groups, including the prosecutors and judges continuously fear of reprisals and threats of
retaliation from the accused. Reprisal is one of the major cause of reluctance of witness and torture
survivors to cooperate and pursue investigation and prosecution of torture cases.

In the Ajid case, the harassment has been experienced through veiled threats and bribery
attempts to silence the victim and his family.

The government’s Witness Protection Program (WPP) provided by the Department of

Justice (DOJ) is not that effective for it is not well implemented and is widely distrusted by the
intended beneficiaries. Some witness complained that protection is guaranteed only during and not
after trial.

In providing for a section for the inapplicability of the ‘Presumption of Regularity’ in the
performance of an officer’s duties upon showing of probable cause, the duration of the proceedings
shall be significantly reduced and shall allow the Trial Court to have more time appreciating the
evidence regarding the merits of the case instead of waiting for the complainant or the State to
discharge the presumption. The section shall ensure that the officer or his/her superior, as provided

4
Torture and Ill-Treatment, supra note 1, at p. 7.
by the command responsibility, alleged to have committed acts of torture would also have to
present pieces of evidence in order to be acquitted of the offense.

The section added is not meant to overturn the presumption of innocence of the accused,
the sections only ensure that in cases of torture, the public officials and enforcers of the law are
expected not to be the primary perpetrators; thus, once a probable cause is found against them, the
presumption of regularity will not apply as a defense. The prosecution, on the other hand, has the
duty to prove their case based on the strength of its evidence to overturn the Constitutional
presumption on the innocence of the accused.

ADDITIONAL SECTIONS FOR RA 9745

For Amendment

Section XX. Inapplicability of the ‘Presumption of Regularity’. In case the alleged offender is a
member of the military, police or law enforcement or a government official, the presumption of
regularity in the performance of his official duties shall not apply. The complainant and/or the
State shall not have any burden to discharge the presumption, and the case shall be tried based on
its merits and evidence provided by the parties.

Section XXX. Conviction. The proceedings shall adopt the ordinary criminal proceedings and the
rules on continuous trial. The proceedings shall be resolved within 60 days from the filing of the
complaint.