Apropos to my previous entry on the Commission on Human Rights (CHR), I am quoting hereinbelow the salient parts of the proposed “Commission on Human Rights Act of 2009” docketed as House Bill No. 6822 (Committee Report No. 2387) of the House of Representatives of the Philippine Congress.
I wish to focus only on the expanded powers of the CHR which may be relevant to Filipino trial lawyers and jurists and for legal research purposes of the visitors of this blog.
The Senate has yet to act on the bill to complete the entire legislative process on the matter.
As I stated in a previous entry, I doubt if the Senate would be able to finish its job, considering the intense political jealousies and hatred that now permeate its haunted and disgraceful halls in the midst of the fast approaching May 2010 national elections.
The new and expanded powers granted by the proposed act to the CH are impressive. They seem to be patterned after the nature of the powers of the Ombudsman under existing laws and the spirit of the provisions of the Supreme Court resolutions on the Writ of Amparo and the Writ of Habeas Data. For instance:
1. The Commission may deputize government prosecutors or private lawyers, who shall be under the direct control and supervision of the Commission, for the prosecution of human rights cases under Section 26 hereof;
2. Any investigation being conducted by any other body shall not be a bar to the investigation of the Commission;
3. It may compel the attendance of witnesses and the production of evidence, to place the witnesses under oath or affirmation, issue subpoenas and take testimony in any investigation or inquiry;
4. It may cite and punish for direct or indirect contempt any person for violations of the Commission’s lawful orders. The Rules of Court shall apply suppletorily to the Rules of the Commission.
5. The Commission may issue:
(a) Injunction orders directing any member of the government’s military or police forces, as well as public officials or employees, or any person acting under their control and supervision, to desist from hiding, transferring or torturing a detainee and to allow access to said detainee by the Commission, his/her counsel, physician and
relatives;
(b) Orders directing the government official or employee, or any person in control of the premises of any government agency or office, specifically police and military detention facilities, secret detention places, stations, installations, camps, bases and training
schools, as well as private land and property, to permit the inspection of said premises;
(c) Orders to transfer persons deprived of their liberty and in danger of reprisal due to the filing of a complaint in connection with his/her detention, in order to secure safety of his/her person;
(d) Restraining orders restricting respondent, his/her unit or command from entering the immediate vicinity of the affected area or residence and from searching the victim or his/her belongings; and
(e) General writs of injunction ordering the respondent to refrain from committing any and all acts that would tend to cause irreparable harm and have the immediate effect of rendering the investigation of the Commission moot and academic.
6. The Commission may also issue:
(a) Mandatory protection orders directing government security forces, other appropriate government agencies or private institutions to provide specific protection to victims of human rights violations;
(b) Orders to deputize government offices and private institutions for the purpose of providing protection; and
(c) Orders to deputize government and private lawyers as counsels de officio to ensure that the human rights of the victim are not further violated.
7. The Commission may grant immunity from prosecution to any person whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding under such terms and conditions as it may determine, taking into account pertinent provisions of the Rules of Court and its own rules. The immunity granted shall be revoked on account of evidence presented to be true but which is, in fact, false and spurious, and without which the Commission would not have granted immunity.
8. With the exception of Members of Congress, those of the Judiciary and impeachable officials, the Commission may preventively suspend any officer or employee, after summary hearing/s, pending an investigation, if in its judgment: (a) the evidence of guilt is strong; (b) the charges would warrant removal from the service; and (c) the respondent’s continued stay in office may prejudice the case filed against him/her.
9. The Commission shall exercise concurrent prosecutorial powers.
In the event of the failure of the prosecution agency of the government to initiate a preliminary investigation within ninety (90) working days from its receipt of the case recommended for prosecution by the Commission, the latter shall conduct the preliminary investigation and, upon a finding of probable cause, refer the same to the appropriate prosecution agency for the filing of the information and prosecution of the case.
In case of failure of the prosecution agency to file the information within thirty (30) calendar days upon receipt of the resolution of the Commission finding probable cause, the latter shall exercise concurrent prosecutorial powers by filing the information in court on its own and prosecuting the case. For this purpose, the Commission shall have the power to deputize government prosecutors or private lawyers who shall be under its
direct control and supervision.
(Comment: I feat that this provision will be rendered practically useless if the in-house preliminary investigations of the Department of Justice are delayed for good or corrupt reasons or are subjected to dilatory internal and external appeals. The Commission should be given exclusive original jurisdiction to conduct preliminary investigations of human rights violations that are criminal in nature. – Atty. M. J. Laserna Jr.).
10. The Commission shall implement and manage a witness protection program, including the provision of security, shelter, relocation and livelihood assistance to witnesses and their families. It shall strengthen its financial assistance program to victims of human rights violations and their families.
11. The Commission may recommend the creation of ad hoc Truth Commissions on matters of transcendental importance, such as widespread and systematic human rights violations occurring over prolonged periods of time, or under extraordinarily repressive conditions, or attended by a culture of impunity that is instigated, inspired or orchestrated by public officials, in conspiracy with government security forces or State-sponsored armed groups.
Please note that orders, decisions or findings of the Commission, including determination of probable cause, shall be appealed to the Court of Appeals on both questions of fact and law (Rule 43), or on certiorari to the Supreme Court on pure questions of law (Rule 45).
No writ of injunction against the Commission in the performance of its functions shall be issued other than those emanating from the Court of Appeals or the Supreme Court only.
Also, the investigation of human rights violations shall not be subject to any statute of limitations or prescriptive period.
Quoted verbatim below are the most important sections of HB No. 6822, thus:
1. SEC. 3. Definition of Terms. – For purposes of this Act, “human rights”
shall include those found in Article III of the Constitution and those affirmed
and recognized by the State in the following international covenants: the
Universal Declaration of Human Rights (1948); the International Covenant on
Civil and Political Rights (1976); and the International Covenant on Economic,
Social and Cultural Rights (1976), and all other international instruments on
human rights to which the Philippines is a signatory.
2. SEC. 13. The Commission as an Independent Office. – The
Commission is an independent constitutional office. It shall not be subject to
instructions or orders from the President of the Philippines, Congress or the
Judiciary, except in cases provided in the Constitution with regard to the
appointment of its Chairperson and Members, legislation affecting the exercise
of its powers and functions, and judicial review of the legality of its acts,
orders, resolutions or decisions.
3. SEC. 15. Fiscal Autonomy. – The Commission shall enjoy full fiscal
autonomy. The approved annual appropriations of the Commission shall be
automatically and regularly released.
4. SEC. 16. General Powers and Functions of the Commission. – The
Commission shall have the following general powers and functions:
(a) Investigate, on its own or on complaint by any party, all forms of
human rights violations;
(b) Adopt its operational guidelines and rules of procedure and cite for
direct and indirect contempt those in violation thereof or of its
lawful orders in accordance with the Rules of Court;
(c) Provide appropriate legal and preventive measures for the
protection of human rights of all persons within the Philippines, as
well as Filipinos residing abroad;
(d) Provide legal aid services to the underprivileged whose human
rights have been violated or need protection;
(e) Exercise unhampered and unrestrained visitorial powers over jails,
prisons or detention facilities;
(f) Establish a continuing program of research, education and
information to enhance respect for the primacy of human rights;
(g) Recommend to Congress effective measures to promote human
rights and to provide for compensation to victims of violations of
human rights or their families;
(h) Monitor the Philippine government’s compliance with international
treaty obligations on human rights;
(i) Grant immunity from prosecution to any person whose testimony or
possession of documents or other evidence is necessary or
convenient to determine the truth in any investigation conducted by
it or under its authority;
(j) Request the assistance of any department, bureau, office or agency
in the performance of its functions;
(k) Deputize government prosecutors or private lawyers, who shall be
under the direct control and supervision of the Commission, for the
prosecution of human rights cases under Section 26 hereof;
(l) Accredit national nongovernment and peoples’ organizations
involved in human rights promotion, protection and advocacy,
including for purposes of visiting persons arrested, detained or
under custodial investigation;
(m) Ensure that the status, rights and interests of children are upheld in
accordance with the Constitution, laws and international
instruments on human rights;
(n) Appoint its officers and employees in accordance with law; and
(o) Perform such other duties and functions as may be provided by law.
5. SEC. 17. Investigative Powers and Functions. – The Commission shall
exercise primary and original jurisdiction to investigate, on complaint or motu
proprio, cases of human rights violations to include civil, political, economic,
social and cultural rights. In the exercise of its investigative function, the
Commission shall have the following powers:
(a) Act promptly on complaints filed in any form or manner by any
person, whether directly affected or not, and on a finding of human rights
violation, recommend the filing of appropriate administrative, civil and/or
criminal action. Any investigation being conducted by any other body shall
not be a bar to the investigation of the Commission;
(b) Compel the attendance of witnesses and the production of evidence,
to place the witnesses under oath or affirmation, issue subpoenas and take
testimony in any investigation or inquiry;
(c) Issue orders and directives constituting preventive and legal
measures as provided for under Sections 19 and 20, respectively;
(d) Provide protection and financial assistance to witnesses to ensure
their attendance in investigations and production of evidence;
(e) Delegate to its deputies, investigators or representatives such
authority or duty as shall ensure the effective exercise or performance of its
investigative function;
(f) Require the assistance of any officer or employee of any
department, bureau or office, subdivision, agency or instrumentality of the
government, including government-owned or -controlled corporations and
local governments;
(g) Deputize lawyers or legal aid groups, medical organizations, as well
as government agencies and offices, to provide assistance in the exercise of its
investigative functions;
(h) Make the results and findings of its investigations available and
accessible to the public; and
(i) Cite and punish for direct or indirect contempt any person for
violations of the Commission’s lawful orders. The Rules of Court shall apply
suppletorily to the Rules of the Commission.
6. SEC. 18. Imprescriptibility of Human Rights Violations. – The
investigation of human rights violations shall not be subject to any statute of
limitations or prescriptive period.
7. SEC. 19. Scope of Preventive Measures. – The preventive measures
under Article XIII, Section 18(3) of the Constitution that may be issued by the
Commission in the investigation of cases involving all forms of human rights
violations shall include the following:
(a) Injunction orders directing any member of the government’s
military or police forces, as well as public officials or employees, or
any person acting under their control and supervision, to desist
from hiding, transferring or torturing a detainee and to allow access
to said detainee by the Commission, his/her counsel, physician and
relatives;
(b) Orders directing the government official or employee, or any
person in control of the premises of any government agency or
office, specifically police and military detention facilities, secret
detention places, stations, installations, camps, bases and training
schools, as well as private land and property, to permit the
inspection of said premises;
(c) Orders to transfer persons deprived of their liberty and in danger of
reprisal due to the filing of a complaint in connection with his/her
detention, in order to secure safety of his/her person;
(d) Restraining orders restricting respondent, his/her unit or command
from entering the immediate vicinity of the affected area or
residence and from searching the victim or his/her belongings; and
(e) General writs of injunction ordering the respondent to refrain from
committing any and all acts that would tend to cause irreparable
harm and have the immediate effect of rendering the investigation
of the Commission moot and academic.
8. SEC. 20. Scope of Legal Measures. – The legal measures under Article
XIII, Section 18(3) of the Constitution that may be provided by the
Commission shall include the following:
(a) Mandatory protection orders directing government security forces,
other appropriate government agencies or private institutions to
provide specific protection to victims of human rights violations;
(b) Orders to deputize government offices and private institutions for
the purpose of providing protection; and
(c) Orders to deputize government and private lawyers as counsels de
officio to ensure that the human rights of the victim are not further violated.
9. SEC. 21. Grant of Immunity. – The Commission may grant immunity
from prosecution to any person whose possession and production of documents
or other evidence may be necessary to determine the truth in any hearing,
inquiry or proceeding under such terms and conditions as it may determine,
taking into account pertinent provisions of the Rules of Court and its own
rules. The immunity granted shall be revoked on account of evidence presented
to be true but which is, in fact, false and spurious, and without which the
Commission would not have granted immunity.
10. SEC. 22. Preventive Suspension. – With the exception of Members of
Congress, those of the Judiciary and impeachable officials, the Commission
may preventively suspend any officer or employee, after summary hearing/s,
pending an investigation, if in its judgment: (a) the evidence of guilt is strong;
(b) the charges would warrant removal from the service; and (c) the
respondent’s continued stay in office may prejudice the case filed against
him/her.
In the case of suspended elective official/s, upon expiration of his/her
preventive suspension, he/she shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him/her which shall be
terminated within one hundred twenty (120) days from the time he/she was
formally notified of the case against him/her.
The preventive suspension shall be immediately executory, unless
restrained by the Court of Appeals or the Supreme Court, and shall continue
until the case is terminated by the Commission: Provided, That said suspension
shall not be more than three (3) months without pay, except when the delay in
the disposition of the case by the Commission is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.
Any abuse of the exercise of the power of preventive suspension shall
be penalized as abuse of authority.
The respondent official preventively suspended from office shall receive
no salary or compensation during such suspension; but upon subsequent
exoneration and reinstatement, he/she shall be paid full salary or compensation
including such emoluments accruing during such suspension.
The respondent shall be accorded full opportunity to appear and defend
himself/herself in person or by counsel, to confront and cross-examine the
witnesses against him/her, and to require the attendance of witnesses and the
production of documentary evidence in his/her favor through the compulsory
process of subpoena or subpoena duces tecum.
11. SEC. 23. Referral to Disciplining Authority. – The Commission may
direct the disciplining authority to take appropriate action against a public
officer or employee found guilty of committing violations of human rights and
recommend his/her removal, suspension, demotion, censure, imposition of fine
or prosecution and to ensure compliance by requiring the officer concerned to
report on his/her action within thirty (30) days from receipt of the
recommendation of the Commission. Failure to act or comply with said
recommendation shall be actionable by mandamus.
For this purpose, every case on which the Commission has rendered a
resolution or recommendation adverse to a public official shall be transmitted
to the head of the department, agency or instrumentality, or of the province,
city or municipality concerned for immediate action, as may be necessary.
12. SEC. 26. Concurrent Prosecutorial Powers and Functions. – The
Commission shall exercise concurrent prosecutorial powers and, functions as
herein provided.
In the event of the failure of the prosecution agency of the government
to initiate a preliminary investigation within ninety (90) working days from its
receipt of the case recommended for prosecution by the Commission, the latter
shall conduct the preliminary investigation and, upon a finding of probable
cause, refer the same to the appropriate prosecution agency for the filing of the
information and prosecution of the case.
In case of failure of the prosecution agency to file the information
within thirty (30) calendar days upon receipt of the resolution of the
Commission finding probable cause, the latter shall exercise concurrent
prosecutorial powers by filing the information in court on its own and
prosecuting the case. For this purpose, the Commission shall have the power to
deputize government prosecutors or private lawyers who shall be under its
direct control and supervision.
This section shall apply in cases where the offender is a public officer as
defined under Article 203 of Republic Act No. 3815, otherwise known as the
Revised Penal Code, as amended, and acting in his/her capacity as such, or any
person acting on behalf or under the immediate control of the State and its
agents and where the human rights violation constitutes a criminal offense
under the Revised Penal Code, as amended, and special laws, as follows:
(a) Use of physical, psychological and degrading punishment, torture,
force, violence, threats and intimidation;
(b) Extrajudicial killings, summary executions and “massacres” or
mass killings;
(c) Violations of right to be secure from unreasonable searches and
seizures, including involuntary or enforced disappearances;
(d) Violations of the rights of persons arrested, detained or under
custodial investigation, including deprivation of the rights of
political detainees;
(e) Violations of the right to a speedy, impartial and public trial or
disposition of cases;
(f) Hamletting, forced evacuation or eviction, illegal demolition,
development aggression and other violations of the right to travel
and to freely choose one’s abode and change the same;
(g) Violations of the right to peaceably assemble, free association and
to petition the government for redress of grievances;
(h) Violations of the right to worship and the free exercise of a religion;
(i) Violations of the right to privacy;
(j) Violations of civil and political rights of persons suspected of,
accused of, or detained for the crime of terrorism or conspiracy to
commit terrorism;
(k) Political, religious, racial, ethnic, social or sexual persecution,
oppression or harassment committed with acts constituting offenses
punished under the Revised Penal Code, as amended, and special
laws; and
(l) In general, any crime penalized under the Revised Penal Code, as
amended, or special laws when committed within the context of or
resulting to human rights violations.
13. SEC. 27. When Committed by Non-State Actors. – The preceding
section shall also apply when the violation is committed by non-state actors.
Non-state actors are persons, other than public officers, belonging to and
acting on behalf or under the immediate control of a juridical or non-juridical
person, whether legitimate or illegitimate including, but not limited to, the
following:
(a) Armed groups, warlords and private armies;
(b) Criminal organizations and groups; and
(c) Multinational, foreign and domestic corporations, and other
business entities.
14. SEC. 28. When Committed Against Vulnerable Persons. – The
concurrent prosecutorial powers of the Commission shall likewise apply in the
investigation and prosecution of the following offenses as penalized under the
Revised Penal Code, as amended, and special laws when committed by any
person against any member or group of vulnerable persons, as defined herein:
(a) Involuntary servitude constituting Crimes Against Personal Liberty
and Security;
(b) Crimes penalized under Republic Act No. 7610, or the “Special
Protection of Children Against Abuse, Exploitation and Discrimination Act”;
(c ) Crimes penalized under Republic Act No. 9262, or the
“Anti-Violence Against Women and Their Children Act of 2004”; and
(d) Crimes penalized under Republic Act No. 8371, or “The
Indigenous Peoples Rights Act of 1997”.
Vulnerable persons shall include those identified as such in international
human rights treaties, specifically children, women, elderly, persons with
disabilities, migrant workers, indigenous peoples and ethnic and religious
minorities.
15. SEC. 36. Witness Protection Program. – In the conduct of its
investigations, the Commission shall implement and manage a witness
protection program, including the provision of security, shelter, relocation and
livelihood assistance to witnesses and their families.
16. SEC. 37. Financial Assistance Program. – The Commission shall
strengthen its financial assistance program to victims of human rights
violations and their families.
The funds necessary for the initial implementation of the Witness
Protection and Financial Assistance Program shall be taken from the current
year’s appropriation of the Commission. Thereafter, the funding requirement
shall be included in the annual General Appropriations Act.
The Commission shall adopt operational guidelines on the
implementation and management of these programs which shall be included in
its implementing rules and regulations.
17. SEC. 38. Legal Assistance Program. – The Commission shall
implement a legal assistance program to benefit victims of human rights
violations consisting of the provision of legal services in coordination with
human rights organizations and lawyers’ groups, the Integrated Bar of the
Philippines and Philippine law schools with legal aid programs.
Upon its discretion, the Commission may also provide allowances and
incentives to private lawyers or lawyers’ groups who would render their
professional services on behalf of the Commission in any court proceeding
involving the litigation of human rights cases, subject to auditing rules and
regulations.
18. SEC. 39. Protection of Filipinos Abroad. – The Commission shall
undertake measures for the protection and promotion of human rights of
Filipinos living abroad. It may assign organic personnel to act as Human
Rights Attachés in Philippine embassies or consulates or deputize Philippine
Embassy or Consulate officers, resident private individuals of known probity
and active involvement in human rights work, or foreign-based human rights
and migrant workers’ nongovernment organizations in countries where the
incidence of human rights violations of Filipinos is widespread and
commonplace, including traditional host countries of overseas Filipino
workers.
The assigned personnel acting as Human Rights Attachés or deputized
individuals of the Commission shall monitor the status of human rights of
Filipinos living abroad and establish networks among Filipinos for purposes of
monitoring and reporting cases of human rights violations, as well as for
providing counseling and financial assistance to victims. They shall
immediately notify the concerned Embassy officials of incidents of human
right violations of Filipinos and provide immediate assistance to victims.
19. SEC. 40. Creation of Ad Hoc Truth Commissions. – The Commission
may recommend the creation of ad hoc Truth Commissions on matters of
transcendental importance, such as widespread and systematic human rights
violations occurring over prolonged periods of time, or under extraordinarily repressive
conditions, or attended by a culture of impunity that is instigated,
inspired or orchestrated by public officials, in conspiracy with government
security forces or State-sponsored armed groups.
20. SEC. 41. Issuance of Certifications. – The Commission shall issue
certifications to members of the military, police and other law enforcement
agencies prior to their promotion or assumption to office. The Commission
shall clearly indicate in its certification if the applicant has a pending case with
them and shall state the nature and status of the case/s filed.
The Commission shall also make its own recommendations to the
Commission on Appointments prior to the confirmation of other officials other
than those mentioned in the preceding paragraph, who are being considered for
promotion or appointment.
This provision shall also apply to other government officers with Salary
Grade Twenty-seven (27) or its equivalent and higher.
It may also issue certifications for purposes of trainings, local or foreign
study grants and education purposes, upon proper request made by the
applicant.
21. SEC. 42. Appeals; Prohibition Against Injunction. – Orders, decisions
or findings of the Commission, including determination of probable cause,
shall be appealed to the Court of Appeals on both questions of fact and law, or
on certiorari to the Supreme Court on pure questions of law. No writ of
injunction against the Commission in the performance of its functions shall be
issued other than those emanating from the Court of Appeals or the Supreme
Court.
22. SEC. 43. Protection from Harassment Suits; Dismissal. – The
Chairperson, Members, officers and employees of the Commission shall be
free from any administrative, civil or criminal liability in the regular
performance of their functions. Personal legal actions brought against them
shall be dismissed where it appears that the same was filed for acts committed
in the regular performance of said functions.
