Professional Documents
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Albert Wilson Petition
Albert Wilson Petition
44
Id.
45
Article II, Section 2, 1987 Constitution.
Page 22 of 33
7.6 One of the generally accepted principles of international law is pacta
sunt servanda
46
. State parties must comply with their treaty obligations in good
faith. The Philippines has to comply with its treaty obligations in good faith,
and at least take steps to fulfill these obligations. Under the doctrine of
incorporation, the principle of pacta sunt servanda thus forms part of
municipal law.
7.7 After recognizing the Committees competence in matters regarding
the obligations under the Covenant, the Philippines therefore has the
obligation to exert reasonable efforts to fulfill obligations under the Covenant,
part and parcel of which is Philippine compliance with the views of the
Committee.
7.8 Therefore the Views of the Committee form part of the law of the
land, and the Philippines has an obligation to grant reparation to Mr. Albert
Wilson for the violations of Article 7, 9 and 10 of the Covenant.
The Philippines neither complied with the
views of the Human Rights Committee nor
taken steps to comply with its obligation to
provide redress to Petitioner Mr. Albert
Wilson under the Committee views
8.1 Despite several communications made by both the Petitioner and the
Committee, the Philippines has not taken steps to comply with its
obligation to provide redress to Mr. Albert Wilson. Attached to this
Petition are the demand letters written by Mr. Wilsons counsel to the
office of the Executive Branch, including the Office of the President,
and letters written by The Redress Trust to the Philippine Embassy
and the responsible officers in the Department of Foreign Affairs.
These are attached as Annexes B to F.
8.2 As far back as August 10, 2005, the Views of the Committee were
referred by the Philippines to the Department of Justice and the
Department of Interior and Local Government. However, to date, no
46
Tanada v. Angara, 338 Phil. 546, 592.
Page 23 of 33
effort has been taken by any of these agencies to comply with the said
Views.
8.3 The obligation of the Philippines to provide an effective remedy is set
out in Article 2 paragraph 3 (a) of the ICCPR.
47
8.4 The Committee made findings that the compensation under the
domestic laws of the Philippines are not directed against violations of
these rights under the ICCPR. The Board of Claims only compensates
for unjust imprisonment, and not for the torture and other violations
committed during such imprisonment. The letters to the Executive
Branch demanding redress have yet to be acted upon.
8.5 Instead of providing redress, through its letter-responses to several
follow-ups by the Committee and The Redress Trust, the Philippines
re-raised several factual and legal issues, the issue of admissibility,
claiming that Albert Wilson failed to exhaust administrative remedies
by failing to go to the Commission on Human Rights. They also claim
that he should have instituted civil and criminal suits in Philippine
Courts. Afterwards, the Philippines claimed that the complainant failed
to discharge the burden of proof laid on him. In all, the Committee has
found the response of the State Party, the Philippines, unsatisfactory.
8.6 Furthermore in proceedings before the Committee, as laid down in
several Committee decisions, it is the State party (the Philippines in this
case) that has the unique burden of proof in such human rights cases.
This is because of the absence of direct proof in torture cases, so that if
a person is found in good condition before he was taken into custody
but injured at the time of release, a presumption of responsibility
arises.
48
8.7 More importantly, it has been stated that in torture cases, the burden
of proof cannot rest alone with the author of a communication,
especially considering that the author and the state party do not always
47
See paragraph 3.2.
48
Tomasi v. France, Judgment 27 August 1992, par. 108-111, European Court of Human Rights;
Ribitsch v. Austria, Judgment 04 December 1995, par. 34., 21 E.H.R.R. 573 at par. 111.
Page 24 of 33
have equal access to the evidence and that frequently the state party
alone has access to the relevant information.
49
The Special Rapporteur
on Torture stated that the burden of proving that a person was
subjected to torture should not fall wholly on the alleged victim. The
officials involved or their superiors should also be obliged to provide
evidence to the contrary.
50
8.8 Although the Office of the President has subsequently referred the
matter to the Department of Justice, the government has continued to
do nothing and has taken no action to provide compensation to the
Petitioner.
8.9 The Philippines in its evasion of its obligations further states that there
was failure to exhaust local remedies by Petitioners failure to bring his
case before the Commission on Human Rights. Resort to the
Commission on Human Right is not the proper venue for Petitioners
cause, as its powers are purely investigative and recommendatory in
nature:
The most that may be conceded to the Commission in
the way of adjudicative power is that it may investigate, i.e.,
receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political
rights. But fact finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even
a quasi-judicial agency or official.
xxx xxx xxx
But it cannot try and decide cases (or hear and determine
causes) as courts of justice, or even quasi-judicial bodies do.
To investigate is not to adjudicate or adjudge. Whether in
the popular or the technical sense, these terms have well
understood and quite distinct meanings.
xxx xxx xxx
Investigate, commonly understood, means to examine,
explore, inquire or delve or probe into, research on, study.
49
Mukong v. Cameroon, HRC Communication No. 458/1991, 21 July 1994.
50
Question on the Human Rights of all Persons Subjected to Any Form of Detention or
Imprisonment, In Particular, Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Report of the Special Rapporteur Nigel Rodley, pursuant to Commission on Human
Rights Resolution 1997/37.
Page 25 of 33
The dictionary definition of investigate is to observe or
study closely: inquire into systematically, to search or
inquire into to subject to an official probe to conduct
an official inquiry. The purpose of investigation, of course,
is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts
established by inquiry.
xxx xxx xxx
Hence it is that the Commission on Human Rights, having
merely the power to investigate, cannot and should not try
and resolve on the merits the matters involved
xxx xxx xxx
The only thing the Commission can do is to refer the
matter to the appropriate Government agency or tribunal
for assistance;
51
xxx xxx xxx
8.10 What the Philippine government attempted to do is to require
Petitioner to seek an inefficacious remedy. In fact, international law
jurisprudence states that the State which contests the exhaustion of
administrative remedies must prove that those remedies are effective.
52
The European Court of Human Rights has stated that in the case of
exhaustion of remedies it is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an effective
one available in theory and in practice that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicants complaints and offered reasonable prospects for
success.
53
51
Carino vs. CHR, G.R. No. 96681, December 2, 1991.
52
Velasquez v. Rodriguez, Judgment 29 July 1988, par. 134, Inter-American Court of Human Rights;
See Mukong v. Cameroon, at note 50, Human Rights Committee.
53
Admissibility Case of Akdivar v. Turkey, Judgment 16 September 1996, European Court of
Human Rights [ECHR]; Markovic v. Federation of Bosnia and Herzegovina, 11 April 1997, ECHR;
See also Decision on the Admissibility of Case No. CH/96/21 Krstan CEGAR vs. Federation of
Bosnia and Herzegovina, The Human Rights Chamber for Bosnia and Herzegovina; The African
Commission on Human and Peoples Rights, Information Sheet No. 3: Communication Procedure
(stating that complainants need only present a prima facie case then the burden shifts to the State
to submit specific responses and evidence refuting assertions contained in complainants pleadings).
Page 26 of 33
8.11 The Human Rights Committee was the only appropriate, accessible,
fair and impartial body from which Mr. Wilson could seek legal
remedies and redress for a breach of the Philippines international
obligations. To require Mr. Wilson to go to Philippine Courts and
commence a lawsuit to re-litigate and re-raise the claims would be to
ask an impossibly difficult task and to effectively doom his claim to
failure. Mr. Albert Wilson has never at any point had access to
evidence and to witnesses who will testify in his behalf regarding the
torture and inhumane conditions he suffered while incarcerated in
Philippine detention centers. As a foreigner, he does not have the
resources to pursue his claims in the Philippines. He is only able to do
so now in this Petition because of the helpful intervention and
assistance of a non-governmental organization based in London, The
Redress Trust.
Mandamus lies to compel the Respondents
who have failed to ensure that conditions of
detention and imprisonment comply with
standards laid down in the International
Covenant on Civil and Political Rights.
9.1 The conditions of detention in Philippine jails are not compliant with the
treaty obligations assumed by the Philippine government under the ICCPR. In
particular, the conditions prevalent in Philippine centers of detention are
indicative of a failure to protect a persons physical integrity and are the
equivalent of torture. That these conditions exist are so established it has
become the subject of judicial notice in several criminal cases decided by the
Supreme Court.
9.2 Supporting this is the decision in People v. Dahil
54
, where the Court stated:
The Court, taking note of appellant's said manifestation, recalls
that in several cases in the past it has called attention to the
"incredible overcrowding of prison cells" that lead inevitably to the
formation of wolf packs, and confine prisoners "under
circumstances that strangle all sense of decency, reduce
convicts to the level of animals, and convert a prison term into
PROLONGED TORTURE and slow death. [emphasis added]
54
G.R. No. L-30271, June 15, 1979.
Page 27 of 33
9.3 Also in the De los Santos case,
55
these conditions were relied on as mitigating
circumstances to reduce the penalty imposed by law. The Court stated:
It is evident that the incredible overcrowding of the prison cells, that
taxed facilities beyond measure and the starvation allowance of ten
centavos per meal for each prisoner, must have rubbed raw the
nerves and dispositions of the unfortunate inmates, and
predisposed them to all sorts of violence to seize from their owners
the meager supplies from outside in order to eke out their miserable
existence.
All this led inevitably to the formation of gangs that preyed like
wolf packs on the weak, and ultimately to pitiless gang rivalry for
the control of the prisoners, abetted by the inability of the
outnumbered guards to enforce discipline, and which culminated in
violent riots. The government cannot evade responsibility for
keeping prisoners under such sub-human and Dantesque
conditions.
9.4 There are numerous other instances
56
where the Supreme Court has decried
the sub-human conditions in Philippine jails that give rise to murders and riots
of detention prisoners whose cases are under appeal and which violate the
Philippines obligations under the ICCPR.
9.5 This Honorable Court thus has the opportunity in this case to bring attention
to this festering problem and to direct the Office of the President which
supervises and controls the Department of Justice and the Bureau of Jails to
take steps to protect the human rights of prisoners in the National
Penitentiary and other jails and detention centers. This is only proper given
that as the officials carrying out the execution of the penalties imposed by law,
they are also tasked to ensure that the basic human rights to life, dignity, and
the right not to be tortured are accorded all prisoners.
9.6 Certainly it will be up to the officials concerned to come up with the necessary
and specific steps to bring about this result in accordance with the ruling laid
down in the recently decided case of MMDA et al. vs. Concerned
55
People v. Delos Santos, 14 SCRA 4702.
56
G.R. No. L-46397; People vs. Garcia, 96 SCRA 497; G.R. No. L-38755.
Page 28 of 33
Residents of Manila Bay et al.
57
which directed the responsible executive
officials to:
A perusal of other petitioners respective charters or like
enabling statutes and pertinent laws would yield this conclusion:
these government agencies are enjoined, as a matter of statutory
obligation, to perform certain functions relating directly or
indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from
choosing not to perform these duties.
9.7 And even under international law as a member of an international
organization, the respondents in the said case were required to fulfill the
obligations assumed under such treaty.
Lastly, as a member of the International Marine Organization
and a signatory to the International Convention for the
Prevention of Pollution from Ships, as amended by MARPOL
73/78, the Philippines, through the PPA, must ensure the
provision of adequate reception facilities at ports and terminals
for the reception of sewage from the ships docking in Philippine
ports.
9.8 In the same case, the propriety of mandamus was thus set in this manner:
Under what other judicial discipline describes as continuing
mandamus,
58
the Court may, under extraordinary circumstances,
issue directives with the end in view of ensuring that its decision
would not be set to naught by administrative inaction or
indifference. In India, the doctrine of continuing mandamus was
used to enforce directives of the court to clean up the length of
the Ganges River from industrial and municipal pollution.
9.9 Therefore:
The era of delays, procrastination, and ad hoc measures is over.
Petitioners must transcend their limitations, real or
imaginary, and buckle down to work before the problem at
hand becomes unmanageable. Thus, we must reiterate that
different government agencies and instrumentalities cannot shirk
from their mandates; they must perform their basic functions in
cleaning up and rehabilitating the Manila Bay. [emphasis added]
9.10 And in a portion of the dispositive part of the decision:
The heads of petitioners-agencies MMDA, DENR, DepEd,
DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG,
and also of MWSS, LWUA, and PPA, in line with the principle of
continuing mandamus, shall, from finality of this
57
G.R. Nos. 171947-47, Promulgated December 18, 2008.
Page 29 of 33
Decision, each submit to the Court a quarterly progressive
report of the activities undertaken in accordance with this
Decision. [emphasis added]
9.11 Similarly situated to the Petitioners in the previously cited Broniowski case, a
whole class of individuals to which the petitioner in this case belongs is
deprived of the right, not only to compensation for torture suffered under
prison detention, but also for the individuals who continue to remain in such
inhuman, degrading tortuous conditions as recognized by the Supreme Court
itself. They are also entitled to relief.
Petitioner has established the requisites for
the issuance of a writ of mandamus
10.1 Under the Rules of Court, when an officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as
a duty, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person may file a verified petition alleging
the facts with certainty and praying that judgment be rendered
commanding the respondent, to do the act required to be done.
59
10.2 Petitioner sent demand letters
60
on June 19, 2008 and October 20,
2008 to the Chief Executives Office, the Office of the President,
asking that action be taken by the government to comply with its treaty
obligations under the International Covenant on Civil and Political
Rights and its Optional Protocol as expressed by the Human Rights
Committee.
10.3 On November 07, 2008 undersigned counsel received a letter from the
Office of the Executive Secretary
61
stating that it is referring the matter
to the Department of Justice.
10.4 However despite these efforts and several other communications and
efforts in the past, the Philippine Government through the Executive
59
See Rule 65, Section 3, Rules of Court.
60
See the copies of the demand letters which are attached as Annex B and C.
61
A copy of the Letter is attached as Annex G.
Page 30 of 33
Branch and its offices have either contested the existence of the breach
and the findings of the Human Rights Committee long after they have
attained finality, or have taken no action at all. Thus even if there is no
outright denial by the Executive Branch, the long standing lack of
action amounts to a denial thereof and a denial of Petitioners right to a
speedy and adequate remedy.
10.5 Thus in a last effort to obtain the relief he seeks, Petitioner is thus
constrained to file this petition for mandamus under Rule 65.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that this Court
issue a writ of mandamus and order that:
1. Respondents take steps to ensure that Albert Wilson is paid and given
reparation in the amount sufficient to compensate him for the torture
and abuse he suffered under the penal system of the Philippines, in
compliance with Philippine treaty obligations in the ICCPR as
embodied in the Communication of the Human Rights Committee in
Case no. 868/1999 in keeping with international law on reparations.
2. Respondents undertake continual efforts and steps to ensure that no
torture and inhuman and degrading treatment are suffered by prisoners
in the National Penitentiary and other places of detention and
imprisonment in the Philippines, in the manner laid down in the Manila
Bay case.
Other relief just and equitable are likewise prayed for.
Makati City for Manila, __________, 2009.
Page 31 of 33
ROQUE AND BUTUYAN LAW OFFICES
Counsel for Petitioner
1904 Antel Corporate Center
121 Valero Street, Salcedo Village
Makati City
Tel Nos. 750-3847 to 48/887-3893 to 94
Fax No. 887-3893
Email: mail@roquebutuyan.com
H. HARRY L. ROQUE JR.
Roll No. 36976
PTR No. 1573586, 1.08.09/Makati
IBP No. 499912/ Lifetime
MCLE Exemption No. II-002169
JOEL RUIZ BUTUYAN
PTR No. 1573588, 1.08.09/Makati
IBP No. 500459, Lifetime
Roll No. 36911
MCLE Compliance No.0000571
ROMEL REGALADO BAGARES
PTR No.1580064, 1.14.09/Makati
IBP No. 775414, 1.12.09, Socsargen
MCLE Compliance No. II 0015132
Roll No. 49518
MARK PEPITO J. RABE
PTR No. 1580066, 1.14.09/Makati
IBP No. 775416, 1.12.09/Makati
Admitted to the Bar 2008
Roll No.55681
Page 32 of 33
Copy Furnished:
Eduardo Ermita
Executive Secretary
Office of the President
Alberto Romulo
Secretary of Foreign Affairs
Department of Foreign Affairs
2330 Roxas Boulevard,
Pasay City 1300
Raul Gonzalez
Secretary of Justice
Department of Justice
Padre Faura Street, Ermita
Manila 1000
Bureau of Jail Management and Penology
144 Juco Building
Mindanao Avenue, Quezon City
Commissioner Marcelino Libanan
Bureau of Immigration
Bureau of Immigration Building, Magallanes Drive,
Intramuros, Manila
Board of Claims
Department of Justice
Padre Faura Street, Ermita
Manila 1000
Agnes Devanadera
Solicitor General
134 Amorsolo Street
Legaspi Village, Makati City
EXPLANATION
Due to the distance and lack of time, resources and available personnel, copies of
this Petition were served and filed through registered mail instead of personal service.
.
MARK PEPITO J. RABE
Page 33 of 33
VERIFICATION and
CERTIFICATION AGAINST FORUM SHOPPING
I, Mr. Albert Wilson, a British national, of legal age, with address at
________________________________________________, hereby depose and
state that:
1. I am the Petitioner in the above captioned case;
2. I caused the preparation of the Petition, have read the same and certify
that the allegations therein are true and correct based on my personal
knowledge and based on authentic records.
3. I certify that I have not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; and if I should
thereafter learn that a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, I undertake to promptly inform the
aforesaid courts and other tribunal or agency thereof within five (5) days
therefrom.
Mr. Albert Wilson
Affiant
.
SUBSCRIBED AND SWORN to before me this
___________________2009, by affiant _______________, is the same person
who executed the foregoing Verification/Certification Against Forum Shopping
and appearing before me personally and exhibiting to me his ______________,
issued on _________________, at ____________________.
Doc. No. ____________
Page No. ____________
Book No. ____________
Series of 2009.