ALTERNATIVE

DISPUTE
RESOLUTION

BLACKPINK IN YOUR AREA

Bangcolongan, Geneva
Beldia, Neon True
Concon, Kirsten Rose
Decomotan, Carmelita
Estorque, Paul John
Jao-Taboada, Tizza
Javelona, Excel
Toroba, Paula
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Table of Contents
I. INTRODUCTION............................................................................................................................... 3
II. OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT ................................ 6
A. NATIONAL PREVENTIVE MECHANISMS ON OTHER COUNTRIES ...................................................9
B. ESTABLISHMENT OF A NATIONAL PREVENTIVE MECHANISM ACCORDING TO THE
OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT ............................................................... 13
C. THE NON-ESTABLISHMENT OF A NATIONAL PREVENTIVE MECHANISM ACCORDING TO
THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT ............................................................... 16
III. CONCLUSION .............................................................................................................................. 18
REFERENCES ..................................................................................................................................... 20
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I. INTRODUCTION

Human Rights constitutes a set of norms that governs the treatment of every individual and

group by all State and non-state actors through its foundation of ethical standards and principles

concerning what our society considers fundamental to a decent life. These ethical standards and

norms were incorporated into national and manifestly to the international legal systems that will

probably provide redress to alleged victims of Human Rights violations. Before human rights were

written into legal texts, human rights often appeared from claims of individuals who suffered from

injustices who considered it illegal based on moral sentiments and religious beliefs.

Section 2, Article II of the 1987 Philippines Constitution provides explicitly that the

Philippines renounces war as an instrument of national policy, adopts the generally accepted

principles of international law as part of the law of the land, and adheres to the policy of peace,

equality, justice, freedom, cooperation, and amity with all nations. In 1951, the Philippines became

a party to the Convention Relating to the Status of Refugees and the 1967 Protocol in July 1981.

These treaties being Human Rights in nature, we could say that our country is already

accommodating and opening its doors to safeguard Human Rights at all cost.

History dictates that people opposed the violence shown by the Marcos regime during the

Martial Law years as there were reports on abductions, tortures, and even killings of several people.

As an offshoot, the relatives of these victims filed a damages case against former President Marcos

on the ground of the Alien Tort Statute and ended up winning the suit. According to it, the

Philippines is a signatory to the Convention against torture. It is obliged to comply with Article 4,
 4

which states that States Parties must guarantee that all acts of torture are punishable as crimes in

our country.

In the light of protecting its citizen against torture, the Philippines passed and approved

Republic Act 9745 on November 10, 2009. Among its salient features are making the crime of

torture an independent and separate crime that cannot be absorbed or complexed by another crime.

Further, this act also expressly provides that when an action classified as Crimes against Persons

or Personal Liberty and Security under the Revised Penal Code and the crime coupled with torture,

the penalty imposable from those crimes should be on its maximum period. As to amnesty, it shall

not be applicable or extended to a person who committed a crime coupled with torture. The

Republic Act specifically emphasizes more significant consequences on individuals committing

torture as an end of committing another crime.

Today, there were several debates regarding whether the Philippines should establish a

national preventive mechanism according to the Optional Protocol to the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These Optional

Protocol to the United Nations Convention against torture had been specialized in such a way that

it entrusted a body called the National Preventive Mechanisms giving them the role of

implementing the international treaty against torture.

The state parties who would be a signatory to the Optional Protocol will be obliged to put

up a designated National Preventive Mechanisms within one year from the ratification of the

Protocol. The State, on the other hand, is obliged to ascertain that the members of these NPMs

have the relevant prowess and skills to hand out effectively the prevention of torture and other ill-

treatment.
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Numerous countries already adopted these Optional Protocols of putting up a National

Preventive Mechanism, such as the United Kingdom who already established the same in March

2009 after the UK ratified the Protocol. It was made up of 21 statutory bodies that independently

monitor places of detention. Kazakhstan, a notable country when talking of human rights

violations, had already put up its own National Preventive Mechanism by passing it as a law in

July 2013.

In what ways can OPCAT be implemented even in its absence in the legal framework?

Would these NPMs be the answer to prevent or lessen the reported inhuman activities and ill-

treatments in our society?

These are just some of the questions that come into our mind before getting close to

answering whether the Philippines should adopt the specialized form of setting up NPMs in

upgrading our safeguards against tortures and ill-treatment.

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II. OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE

AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT

One of the most significant events that happened on December 10, 1948, was that the

Philippines became the country that first signed the UDHR or the Universal Declaration of Human

Rights and adopted its policies concerning Human Rights. Moreover, the Philippines is also one

of the countries that first signed the ICESR (International Convention on Economic Social and

Cultural Rights and ICCPR (International Convention on Civil and Political Rights)

The Philippines has a good standing and has been compliant with its obligation under

International treaties by adopting its policies to the countries Municipal law to ensure the proper

domestic compliance.

One of the policies adopted by the Philippines is the Right against Torture.

The state policy, as indicated by the United Nations of Human Rights, of Optional Protocol

to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment, is to reiterate that the States should always consider torture and other cruel, inhuman,

or degrading treatment or punishment as prohibited and is against human rights. Moreover, one of

its general objectives of the present Protocol is to establish a system of regular visits undertaken
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by independent international and national bodies to places where people deprived of their liberty,

to prevent torture and other cruel, inhuman, or degrading treatment or punishment.1

The Practical Guide entitled "PREVENTING TORTURE The Role of National Preventive

Mechanisms" explained that "The Optional Protocol to the United Nations Convention against

Torture is unique in many ways: it is the only exclusively preventive international human rights

treaty and the first instrument entrusting national bodies – namely National Preventive

Mechanisms (hereinafter mainly referred to as NPMs) – with a role in the implementation of that

international treaty."2

An NPM or National Preventive Mechanisms are composed of 1 or more bodies tasked to

be the independent visiting bodies established at a domestic level. It performs as detectors of risks

of torture. Moreover, one of the main objectives of the NPM is to "...examine the treatment of

persons deprived of their liberty, to strengthen their protection against torture and other cruel,

inhuman or degrading treatment or punishment."3 These bodies are also required to provide

recommendations on the proper management and handling of people deprived of their liberty.

1
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, Part 1 General Principles Article 1 (2006).
2
Al Hussein, ZR. (2018). PREVENTING TORTURE The Role of National Preventive Mechanism. New York and
Geneva
3
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, Part 1 General Principles Article 19 (2006). www.ohchr.org/en/professionalinterest/pages/opcat.aspx
 8

To explain further, the Practical Guide entitled "PREVENTING TORTURE The Role of

National Preventive Mechanisms" enumerated the four (4) critical functions of NPM, namely:

Visiting function, advisory function, education function, and cooperation function.

The visiting function of the NPM extends to all places and all people deprived of their

liberty. These serve as a venue for NPM to inquire into the conditions and treatment given to

people deprived of their freedom that clearly should not violate their fundamental human rights.

The advisory function of the NPM includes recommendation and submission of proposal

about the proper treatment, custody, and interrogation of the person deprived of their liberty to the

Government.

The educational function of the NPM includes educational guides and mechanisms that

shall provide ample opportunity for universities, schools, and other professional institutions to

educate about the international and state policies against torture and the proper treatment,

management, and rights of People deprived of their liberty.

Lastly, the cooperation function of the NPM gives an arena for dialogue between concerned

citizens and the state concerning torture and ill-treatment. 4

In an article entitled Briefing Paper on National Preventive Mechanisms, it enumerated the

necessary steps for NPM to execute its mandate properly:

4
PREVENTING TORTURE The Role of National Preventive Mechanisms (2018).
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In order to enable the NPM to fulfill its mandate, the States Parties undertake to grant the

Mechanism:

1. Access to all information concerning the number of persons deprived of their liberty

in places of detention, as well as the number of places and their location;

2. Access to all information referring to the treatment of those persons as well as their

conditions of detention;

3. Access to all places of detention and their installations and facilities;

4. The opportunity to have private interviews with the persons deprived of their liberty

without witnesses, either personally or with a translator if deemed necessary, as

well as with any other person who the NPM believes may supply relevant

information;

5. The liberty to choose the places they want to visit and the persons they want to

interview;

6. The right to have contacts with the Subcommittee on Prevention, to send it

information and to meet with it.5

Thus, the state shall grant NPM access to information that is significant to its objective of

assuring that the person's human rights deprived of liberty are respected and conformed of by the

state.

A. NATIONAL PREVENTIVE MECHANISMS ON OTHER COUNTRIES

5
Briefing Paper on National Preventive Mechanism. balayph.net/news-events/features-and-articles/134-briefing-
paper-on-national-preventive-mechanism-2
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ARMENIA: THE HUMAN RIGHTS DEFENDER’S OFFICE

In 2008 Parliament designated the Human Rights Defender’s Office as the National

Preventive Mechanism through an amendment to the 2003 Law on the Human Rights Defender.

Article 6.1 of the Law, introduced in 2008, states that the Human Rights Defender is recognized

as an independent NPM under the Optional Protocol. The law and subsequent amendments provide

no further detail on the functioning of the NPM. The tasks and powers of the NPM therefore derive

from the Optional Protocol, in particular articles 19 and 20, and have been further elaborated on

in relevant internal regulations.

BRAZIL: THE NATIONAL SYSTEM TO PREVENT AND COMBAT TORTURE

The National System to Prevent and Combat Torture comprises variety of institutions and

bodies, including the National Committee to Prevent and Combat Torture, the National

Mechanism to Prevent and Combat Torture, the National Penitentiary Department, the National

Council on Criminal and Prison Policies, and local committees to prevent and combat torture at

State level. The role of the National System is to integrate all these bodies and institutions and to

hold an annual meeting. The National Committee was established in 2014 and became operational

in 2015.

DENMARK: PARLIAMENTARY OMBUDSMAN

The Parliamentary Ombudsman is the designated authority in Denmark to carry out special

supervision of the conditions afforded to persons deprived of their liberty. In order to ensure that

the Parliamentary Ombudsman has the necessary authority to carry out inspections of private

institutions in accordance with the mandate of the OPCAT, the Ombudsman Act was amended to
 11

include persons deprived of their liberty in private institutions, and to provide that these institutions

have a duty to pass on information, hand over documents and prepare written statements to the

Ombudsman. In addition, the Act stipulates that” if it is deemed necessary, and against due proof

of identity, the Parliamentary Ombudsman has access at any time to inspect without warrant

private institutions, where persons are or may be deprived of their liberty. If necessary, the police

will assist in the execution thereof.” The NPM has also concluded agreements with the Danish

Institute for Human Rights (NHRI) and DIGNITY (NGO) on formal collaboration with civil

society organizations in order to strengthen the Ombudsman’s monitoring activities.

GERMANY: THE NATIONAL AGENCY FOR THE PREVENTION OF TORTURE

The Federal Agency for the Prevention of Torture and the Joint Commission of the Länder

for the Prevention of Torture together form the two pillars of the National Mechanism for the

Prevention of Torture, which was established in 2010 (Mueissen, 2015). The Federal Agency is

responsible for facilities run at federal level (detention facilities operated by the Federal Armed

Forces, Federal Police and the German Customs Administration), and the Joint Commission of the

Länder is responsible for facilities under the jurisdiction of the States/Länder (police, judiciary,

detention facilities in psychiatric clinics, establishments of custody pending deportation, nursing

homes, and youth welfare establishments).

NEW ZEALAND: THE HUMAN RIGHTS COMMISSION AND FOUR MECHANISMS

In New Zealand the Human Rights Commission was designated as the Central National

Preventive Mechanism with a coordinating role, and four NPMs were designated to inspect and

monitor specific categories of places of detention, namely: the Ombudsman – in relation to prisons,
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premises approved or agreed under the Immigration Act 1987, health and disability places of

detention and youth justice residences; the Independent Police Conduct Authority – in relation to

people held in police cells and otherwise in the custody of the police; the Children’s Commissioner

– in relation to children and young persons in residences; the Inspector of Service Penal

Establishments – in relation to Defense Force Service Custody and Service Corrective

Establishments.

SENEGAL: THE NATIONAL OBSERVATORY OF PLACES OF DEPRIVATION OF

LIBERTY

In 2011 the Council of Ministers approved the implementing decree of the legislation

establishing the National Observer of Places of Deprivation of Liberty, which established a new

institution as NPM. In 2012 the Council of Ministers approved the appointment of a former

magistrate and technical adviser to the Ministry of Justice as the National Observer.

TUNISIA: THE NATIONAL COMMISSION FOR THE PREVENTION OF TORTURE

The NPM is a recently-created specialized institution, established in 2013, through a

transitional process during which a number of independent human-rights-related bodies were

created. The Law No. 2013-43 establishing the NPM was produced through a participatory process

involving experts from civil society and the public administration. In November 2013 the

Parliament issued a public call for candidates for membership of the NPM (Doubek, 2019). Owing

to lack of applications, the call for candidates was renewed several times throughout 2014 and

2015. In March 2016 the 16 members of the NPM were elected by the Parliament. OHCHR Tunisia
 13

and the SPT, as well as other stakeholders, provided continuous support for the establishment of

the NPM and thereafter in respect of its effective functioning in accordance with OPCAT.

AZERBAIJAN: COMMISION ON HUMAN RIGHTS

Azerbaijan designated the Commissioner for Human Rights as NPM by means of

Presidential Decree n°112 (13 January 2009). Azerbaijan made the designation public through a

declaration under Article 17 upon ratification. There is a specific unit within the Commissioner

for Human Rights to conduct visits to places of detention.6

B. ESTABLISHMENT OF A NATIONAL PREVENTIVE MECHANISM ACCORDING TO

THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT7

Torture is a severe violation of human rights, and the Philippines is one of the forerunners

against torture and other ill-treatment. Thus, the following are the advantages of setting up an NPM

in the Philippines:

First, with the visiting mechanisms of NPM, the Philippines is given hands-on information

and assessment as to the current standing of the country concerning human rights violations,

6
PREVENTING TORTURE The Role of National Preventive Mechanisms p. 9-10 (2018).
7 Lagat, CJ. (2018).Effectiveness of National Preventive Mechanisms in prevention of torture: the case of
interconnectedness and cooperation. Ljubljana, Slovenia
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precisely, torture. With this relevant information, suggestions, and examinations, Congress can

develop legislation that will further strengthen the call for human rights protection.

Moreover, NPM in the Philippines, as a domestic body, will have the opportunity to

regularly monitor and conduct open dialogues with relevant authorities to locate and discuss

matters concerning concrete preventive measures.

Second, with the assistance of NPM, the Government can further extend its ambit of

support in the field of human rights by legislating laws that will provide measures for the

prevention of torture and other forms of ill-treatment.

These preventive measures shall be an excellent way to identify early warning signs and

prevent torture and ill-treatment to people deprived of their liberty.

Third, people deprived of their liberty are usually exposed to the risk of being victims of

torture because of power disparity. These prisoners or detainees became the victim of violence or

torture from the authorities or their fellow inmates.

With the passage of these laws or any preventive measures, there is an assurance that the

living conditions and treatment toward people deprived of liberty will improve by ensuring their

protection and human treatment.

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Fourth, NPM, free from government influence, can venture to increase the help and support

for the physical and mental conditions of people deprived of liberty by providing medical check-

ups and counseling whenever necessary.

With the establishment of NPM and the Government's support but free from the latter's

influence, the Philippines has a stronger stand to combat and address issues on torture and ill-

treatment.

As quoted in the article entitled "The Opcat: torture prevention in practice," UN Special

Rapporteur on Torture, Report to the UN General Assembly emphasized that it "considers this

new instrument to be the most effective and innovative method for the prevention of torture and

ill-treatment worldwide. It was almost 30 years ago that Jean-Jacques Gautier, a proposed a

universal system of preventive visits to places International Committee of the Red Cross and Red

Geneva banker dedicated to the eradication of torture, of detention on the model of the visits

carried out by the Crescent."8

In sum, non-establishment of NPMs will put the efforts of member countries in vain. Thus,

all torture prevention endeavors of significant government agencies cannot be executed

effectively. NPMs assume a substantial part in prevention for some reasons.

8 https://www.apt.ch/en/what-we-do/achievements/opcat-torture-prevention-practice
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What stands out among them is that their existence in State Parties' domains permits them

to make however many visits as could be expected under the circumstances without movement

imperatives. They have the freedoms to impact public strategies. Furthermore, they have better

information and comprehension of the legal, social, cultural, political, and economic

circumstances, which is valuable while proposing practical suggestions. It will likewise echo a

commendable message to other State Parties' obligation to prevent torture and abuse.

C. THE NON-ESTABLISHMENT OF A NATIONAL PREVENTIVE MECHANISM

ACCORDING TO THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST

TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT9

The non-establishment of National Preventive Mechanisms (NPMs) under the Optional

Protocol to the Convention (OPCAT) also has its share of advantages.

One of its advantages is it will not require a lot of monetary funding.

It is essential that whatever role the NPM plays requires adequate financial and human

resources to operate. Signatory countries or member countries to the OPCAT and different entities

financially contribute to the OPCAT Special Fund to help support national torture prevention

pursuit worldwide and carry out all OPCAT-related tasks. The Fund depends totally on voluntary

9 PREVENTING TORTURE The Role of National Preventive Mechanisms (2018).

 17

donations. NPM members consented to make modest monetary contributions to the focal expenses

of the NPM.

However, the UK government, for instance, later executed broad public spending cuts that

essentially diminished their assets. Thus, the non-establishment of NPMs will remove the burden

that members carry on their shoulders.

Studies have shown that insufficient monetary assets stayed a hindrance for the NPM hiring

outside proficient specialists to take an interest in its visits. The budget allocated is simply enough

to pay NPMs and Non-Governmental Organizations staff. There are times when NPMs are not

entirely mindful of the specific expense of securing outside master. Although NPMs take some

additional financing from different sources, it is never enough. This aspect is an advantage to the

non-establishment of NPMs.
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III. CONCLUSION

The State has legal obligations to respect and protect the enjoyment of the rights of its

people. And in complying with said obligations, passed and approved the RA 9745 - Anti-torture

Act of 2009. The State ensures 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

the custody of any person in authority or, agent in 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, Sec.2(b) of RA 9745. The State

also ratified the OPCAT in 2012, which requires to design and establish one or several independent

NPMs.

The National Preventive Mechanisms are independent visiting bodies established at the

domestic level, composed of one or more bodies, for the prevention of torture and other cruel,

inhuman, or degrading treatment or punishment.

Having those positive functions, the formation of said bodies would be efficient to

strengthen the protection and to improve the treatment and condition of persons having deprived

of their liberty.

Though there has been a debate about this topic, it is clear that a national preventive

mechanism under the Optional Protocol to the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (OPCAT) would help protect the citizens of the

Philippines against torture. The establishment and non-establishment of National Preventive

Mechanisms have their fair shares of advantages.

Although the establishment of NPM according to the OPCAT would mean additional

monetary funding, it is still essential that the people, specifically people deprived of their liberty,
 19

are protected from torture and other forms of inhuman acts. The establishment of such NPM is a

great way to closely monitor the situation and identify the signs to adopt preventive means to

combat the problem. Finally, the NPM as an independent body has a wider scope of movement

since it is free from outside influence. Moreover, it enables it to have better comprehension of the

situation.

Having considered all the advantages of countries with National Preventive

Mechanisms under the Optional Protocol to the Convention Against Torture and other cruel,

inhuman, or degrading treatment or punishment, the group expressed its stand that the Philippines

should establish a National Preventive Mechanism.

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REFERENCES

Lagat, Caroline Jepkosei. 2018. “Effectiveness of National Preventive Mechanisms in prevention

of torture: the case of interconnectedness and cooperation”. European Master’s Degree in Human
Rights and Democratisation.
repository.gchumanrights.org/bitstream/handle/20.500.11825/879/Lagat.pdf?sequence=1
&isAllowed=y&fbclid=IwAR2qevzBgxoE-
kzEM1NJJSJdYQZ1LwWow4r0mxAxcYM592AJ-3b0PqQjnAA
Office of the United Nations Commissioner for Human Rights. (2018). “PREVENTING
TORTURE The Role of National Preventive Mechanisms”,
ohchr.org/Documents/HRBodies/OPCAT/NPM/NPM_Guide.pdf?fbclid=IwAR2U9s72Z
eQYdFUHnbsMx9-61XzrzPAhW5As7OcJlwe91mZd8pDhWy7Mv14.
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment. (2006 adopted at 57th session of the General Assembly of the United
Nations).
www.ohchr.org/en/professionalinterest/pages/opcat.aspx?fbclid=IwAR1yHPt23_25d_K5
MvdgUI1ElvqgY9inlKufuNgfBJ8sZigzd3m5JhgSxn4
THE OPCAT: torture prevention in practice (2006, August 14).
https://www.apt.ch/en/what-we-do/achievements/opcat-torture-prevention-
practice?fbclid=IwAR2w3erCU8zFpol0GIbfOGX0OfkSuvnaFgjllmlcG6AGtjc8aBAzPb
vURvQ