REPUBL‘C OF THE PHILIPPINES SUPREME COURT Manila rst Division ALBERT ERNES] WHLSON, Petitioner, -versus- G.R. No. 189220 THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA ET. AL., Respondents. x: x COMMENT Re: Petition for Mandamus dated September 2, 2009 RESPONDENTS Executive Secretary Eduardo Ermita, Secretary of Foreign Affairs Alberto Romulo, Secretary of Justice Raul Gonzalez, Bureau of Jail Management and Penology, Bureau of Immigration, Board of Claims, Department of Justice, The Board of Claims,, Solicitor General Agnes Devanadera and Bureau of Immigration, by counsel, respectfully state: PRELIMINARY STATEMENT 1. This is a petition for mandamus filed by petitioner Albert Ernest Wilson against respondents seeking to compel the Philippine «Comment ‘Abert Wilson va, Hom. E> cutive Secretary Eduardo Emit, et al. 2 GR_No. 189220 Government to compensat:? petitioner for the alleged violation of his rights under the Intern ational Covenant on Civil and Political Rights (Covenant), purpe't sly committed by Philippine prison officials, as determined by the Human Rights Committee (Committee) established under Art. 28 of the Covenant, in its Views dated October 30, 2003. Petitioner also seeks to enjoin the Philippine Government to ensure that no torture, cruel, inhuman or degrading treatment or punishment be inflicted upon prisoners in the New Bilibid Prisons and in other places of detention and imprisonment within the Philippines. ANTECEDENTS 2. On September 18, 1996, petitioner Albert Ernest Wilson was charged before the Regional Trial Court (RTC) of . Valenzuela City with the crime of rape committed against Veronica Pasco, a twelve-year old child, on September 16, 1996. During the trial of the case, petitioner was detained at the P Valenzuela City Jail.Comment Secretary Eduardo Eriaita, et. a 5 GIR. No. 189220 3. On September 30, 1998, the RTC found petitioner guilty beyond reasanable 4 subt of the F Fape aria imposed upon him the death penalty pursuant to Section 11 of Republic Act No. 7659. Immediately, petitioner was transferred to the New Bilibid Prisons. 4. The case was elevated to the Supreme Court on automatic review. The Solicitor General filed a Manifestation recommending the acquittal of petitioner. 5. On June 15, 1999, while petitioner's case was pending review before the Supreme Court, petitioner, represented by counsel, Ms. Gabriela Echeverria, submitted Communication No. 868/1999 before the Committee. Petitioner, in said Communication, alleged that the Philippine Government violated his rights as guaranteed by Articles 6, 7, 9 and 14 (1) (2) (3) of the Covenant. 6. On December 21, 1999, the Supreme Court acquitted petitioner of the crime charged and ordered his immediate release from the New Bilibid Prisons.Comment Secretary Eduardo Ermita, ety | 4 GR. No. 189220 7. On December 22, |999, petitioner ‘eft the Philippines for United Kingdom after respondent Bureau of Immigration and Deportation (BID) lifted the Hold Departure Order issued against him, Petitioner was also made to pay the amount of Twenty- ‘Two Thousand Seven Hundred Forty Pesos (P22, 740.00) by BID for overstaying. 8. In the United Kingdom, petitioner filed a claim for compensation before the Board of Claims pursuant to Republic Act No. 7309, An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and For Other Purposes (RA 7309). Initially, the Board of Claims awarded petitioner the amount of Fourteen Thousand Pesos (P14, 000.00). Upon request for reconsideration by petitioner, said amount was later increased to Forty Thousand Pesos (P40, 000.00). 9. Meanwhile, the Committee directed the Philippines to file its Submission to petitioner's Communication. On August 5, 2002, the Philippines filed the required Submission before the Committee. In its Views adopted on October 30, 2003, the Committee found the Philippines liable for violating the rights ofComment Albert Wilaon ws, Hon, Executive Secretary Eduardo Ermita, et al., GR No. 189220 petitioner under the Covenint. It held: 8. Ths Human RUGhES Carrimiitt acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal violations by the Philippines of article 7, article 9, paragraphs 1, 2 and 3, and article 10, paragraphs 1 and 2, of the Covenant 9. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. In respect of the violations of article 9 the State party should compensate the author. As to the violations of articles 7 and 10 suffered while in detention, _ including subsequent to sentence of death, the Committee observes that the compensation provided by the State party under its domestic law was not directed at these violations, and that compensation due to the author should take due account both of the seriousness of the violations and the damage to the author caused. In this context, the Committee recalls the duty upon the State party to undertake a comprehensive and impartial investigation of the issues raised in the course of the author's detention, and to draw the appropriate penal and disciplinary consequences for the individuals found responsible, As to the imposition of immigration fees and visa exclusion, the Committee takes the view that in order to remedy the violations of the Covenant the State party should refund to the author the moneys claimed from him. All monetary compensation thus due to the author by the State party should be made available for payment to the author at the venue of his choice, be it within the State party's territory or abroad. The State party is also under an obligation to avoid similar violations in the future. 10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rightsComment Secretary Eduardo Ermit et.al GR No. 189220 recegnized in the Covenant, and to provide an effective and enforceable remedy in case @ violation has been established, the Committee Fecelve From fh ¥ys, information about give effect to the Committee's Views, The State party is also requested to publish the Committee's Views. (Views, October 30, 2003, pp. 13-14) 10. On April 26, 2005, the Philippines submitted its Reply to the Views dated October 30, 2003 issued by the Committee. 11. In 2006, the Philippine Government, through the Permanent Mission of the Philippines to the United Nations, received a copy of Counsel's Submission filed by the Redress Trust, on behalf of petitioner. The Counsel's Submission serves as petitioner's comment to the Philippines’ submission on the implementation of the Views of the Committee dated October 30, 2003. The Philippine Government filed its Comment to Counsel's Submission in the latter part of 2006. On June 19, 2008, petitioner, through his counsel, Roque and Butuyan Law Offices, wrote a letter to the Office of the President demanding the following: compensate petitioner; direct the Board of Claims to release the sum awarded by it to petitioner; and direct the BID to refund the amount of Twenty-Two Thousand Seven Hundredsat Secretary Eduardo Ermita, et, al, ry G.R. No, 189220 Forty Pesos (P22, 740.00) paid by petitioner. Said demands were reiterated in another lette; dated Octcber 20, 2008 addressed to the Office of the President. On October 29, 2008, the Office of the President referred petitioner's letters to the Department of Justice (DOJ). Not having received any positive action from the concerned goverriment officials, petitioner filed the present petition ; ARGUMENTS THE COVENANT AND THE OPTIONAL PROTOCOL DO NOT FORM PART OF = — 4 vel galey Dope THE LAWS OF THE REPUBLIC OF THE PHILIPPINES. ae ry Liaditet we — ML isw a m4, FINDINGS AND DECISIONS OF THE COMMITTEE ARE MERELY RECOMMENDATORY. HENCE, THE PHILIPPINE GOVERNMENT IS UNDER NO OBLIGATION TO ENFORCE OR IMPLEMENT THE COMMITTEE'S DECISIONS OR DETERMINATIONS. aoe FolComment Secretary Fduardo Fmita, etal, GR 220 ut THE PHILIPPINE iOVERNMENT M/Y NOT BE COMPELLED 10 COMPENSATE P'UTITIONER FOR ALLEGED VIGLAITON, BY PRISON OFFICIALS, oo): HIS = RIGHTS GUARANTEED UNDER THE COVENANT. Iv THE EXTRAORDINARY WRIT OF MANDAMUS DOES NOT LIE IN THIS CASE. Vv THE PETITION IS IMPROPER AS IT RAISES QUESTIONS OF FACTS. VI THE PRESENT CASE IS A SUIT AGAINST THE STATE AND THE STATE HAS NOT GIVEN ITS CONSENT THERETO. lyn cpus Party & _ (0 Cottrrmar, UE‘Comment ‘Allert Wilson vs. Hon. Executive Secretary Eduardo Ermita, et a e GR No, 189220 DISCUSSION iL The Covenant and the Optional Protocol do not form part of the laws of the Republic of the Philippines. 12. Petitioner contends that the Covenant and the Optional Protocol to the International Covenant on Civil and Political Rights (Optional Protocol), having been ratified by the Philippine Senate, form part of the domestic laws of the | Philippines. 13. The argument is devoid of merit. Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. 14. The transformation method requires that an international law be transformed into domestic law through a constitutional mechanism, such as_—_local_legislation (Pharmaceutical and Health Care Association of the Pl ippines vs. Duque, III, et. al., 535 SCRA 265 [2007]). Ratification, alone, by the Senate of a treaty or internationalComment Secretary Eduardo rmita, et al, agreement is not, by itse! , sufficient to mandate enforcement of such treaty or internatione! agreement within the Philippines. 15. At the time of the alleged torture, which was from 1996 to 1999, and even at the time of the filing of this petition on September 2, 2009, the provision against torture or cruel, inhuman or degrading treatment or punishment under the Covenant had yet to be transformed into domestic law through local legislation. 16. That the Covenant does not automatically form part of the domestic laws of the Philippines, upon its signing and ratification, is buttressed by Article II, par. 2 of the Covenant itself. It provides: ! Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. (Emphasis supplied) 17. In Naoum vs. Attorney General of U.S., 300 F. Supp. 2D 521, 11 A.L.R. Fed. 2D 967 (N.D. Ohio 2004), theComment Iaivert Wiloon ve, Hon. Executive Secretary Eduardo Ermita et. al., GR. No. 189220 court therein ruled that th - Covenant does not include express language providing for pa ticular judicial remedies. No indication exists that the Covenant was intended te be self-a ig or to create private rights of action in the domestic courts of signatory countries absent additional domestic legislation. 18. Consequently, the Covenant does not have the force and effect of law in this jurisdiction under the transformation method. 19. On the other hand, the incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law (Pharmaceutical and Health Care Association of the Philippines vs. Duque, III, et. al., supra). The method is embodied under Article 11, Section 2 of the 1987 Constitution: SECTION) 2. 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 (Emphasis supplied). 20. The phrase “generally accepted principles of‘bert Wilson vs. Hon. Executive . Secretary Eduardo Ermita, et. a, b GR. No. 189220 international law” refers to norms of general or customary international law whic are binding on all states, i.e., renunciation of war 25 an instrument of national policy, the principle of sovereign immunity, @ person's right to life, liberty and due process, and pacta sunt servanda, among others (Pharmaceutical and Health Care Association of the Philippines vs. Duque, III, et. al., supra). 21. Fr. Joaquin G,. Bernas defines customary international law as follows: Custom or customary international law means "a general and consistent practice _of states followed by them froma sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do. Xxx Xxx XXX The initial factor for determining the existence of custom is the actual behavior’ of states. This includes several elements: duration, consistency, and generality of the practice of states. The required duration can be either short or long, Xxx 2H 2K Duration therefore is not the most important element. More important is the consistency andthe generality of the practice. . .Comment Allert Wilson ws, Hon, Executive Secretary Eduardo Ermita, et. a, b GR. No, 189220 od Xxx XXX Ghee the existe OF State practice has “ been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it ol jatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes ; Practice an international rule. Without it, practice is not law (Underscoring and Emphasis supplied) (Pharmaceutical and Health Care Asso: in of the Philippines vs. Duque, II, et. al, supra). 22. In this case, petitioner failed to prove that the Covenant, specifically the provision against torture, although signed and/or ratified by 165 States, was in fact enforced or implemented by at least a majority of these States. Petitioner also failed to prove that any compliance by the States with said Covenant was obligatory in nature. 23. Petitioner, therefore, has failed to establish that the provision against torture or cruel, inhuman or degrading treatment or punishment under the Covenant is customary international law that may be deemed part of the law of the land. 24. As such, legislation is necessary to transform the