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Felicity Gerry QC
Carmelite Chambers, London
Karen Gomez Dumpit
Commissioner at the Commission on Human Rights of the Philippines
Vice-President of the Capital Punishment Justice Project
Internship at the Anti-Death Penalty Legal Clinic
In 2019 Representative Micaela S Violago proposed the reintroduction of the death penalty in the Philippines for qualified human trafficking cases through House Bill No 1,239 to amend section 10(c) Republic Act No 9,208 as follows:
‘(a) Section 10 Penalties and Sanctions. – The following penalties and sanctions are hereby established for the offenses enumerated in this Act:
… (c) Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of [life imprisonment] DEATH and a fine of not less than two million pesos but not more than five million pesos’.
Representative Violago asserts that the Philippine Constitution grants the flexibility to impose the death penalty under certain circumstances and based on the current wisdom of the times.
This article summarises a study undertaken by the authors with the Philippines Commission on Human Rights, as to the accuracy of those assertions and the likely effects on tackling human trafficking. We found that House Bill No 1,239 is problematic in three respects. First, the proposal is a serious breach of international law. Second, the proposal demonstrates a significant lack of understanding of human trafficking and, as such, creates harm for those who have been previously victimised by human trafficking. Third, the proposal creates several other implications for the Philippines, particularly the economic issue of slavery in supply chains. The overlap with the law on human trafficking means there is a real risk that proposed House Bill No 1,239 could have a significant downward effect on trade and commerce including a financial and reputational risk for subsidiaries based in the Philippines.
Death penalty reintroduction
The reintroduction of the death penalty would reverse the historic precedent the Philippines set in 1987 in a determined effort to restore respect for human rights by becoming the first Asian country in modern times to abolish the death penalty for all crimes. The Constitution of the Philippines contains a Bill of Rights, section 1 of which protects the right to life, subject to due process of law. Section 19(1) of the Constitution states that the death penalty must not be imposed, unless for compelling reasons involving ‘heinous’ (serious) crimes. However, House Bill No 1,239 proposes the reintroduction of the death penalty after abolition. The Philippines is a state party to the International Covenant on Civil and Political Rights (ICCPR). After the passage of Republic Act 9,346: An Act Prohibiting the imposition of the Death Penalty, the government ratified the Second Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty, which binds the country not to reintroduce the death penalty. The Philippines is party to the Second Optional Protocol. According to Article 6, paragraph 2, ICCPR, countries that have already abolished the death penalty cannot reintroduce and impose this punishment, even for most serious crimes. This is reiterated in draft General Comment 36 on Article 6 of the ICCPR. Accordingly, any reintroduction of the death penalty in the Philippines may well constitute a breach of its obligation under the ICCPR Article 6, paragraph 2 and the Second Optional Protocol which guarantees the permanent non-reintroduction of the death penalty in states that ratified the Protocol. The ban is so broadly accepted that it is considered a norm of customary international law. In 1997 the UN High Commission for Human Rights approved a resolution that the ‘abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights.’ Subsequent resolutions called for restriction of death eligible offences and for a moratorium on all executions (leading to abolition).
In the context of House Bill 1,239 approach to qualified human trafficking, the likelihood is that foreign nationals will be subject to investigation and potential prosecution. In the Philippines, trafficker profiles include citizens of Australia, New Zealand, the United Kingdom, and the United States, with an increasing number of reports from China, Japan, Morocco, Iraq, and Denmark. All of these jurisdictions would have standing to raise any breach of an international obligation (here by violation of the terms of Article 6, paragraph 2 of the ICCPR) at the international level, which has the potential to create enormous international difficulties for the Philippines.
Human trafficking: international law and domestic responses
The Philippines, as a member of Association of South East Asian Nations (ASEAN), is committed to combatting human trafficking in all its forms. The 2004 ASEAN Declaration Against Trafficking in Persons Particularly Women and Children states the importance of distinguishing victims of trafficking from perpetrators and reinforces the need to ensure that the ‘dignity and human rights of genuine victims of trafficking’ are respected. Since 2004, ASEAN, has committed to combating human trafficking through the ASEAN Convention on Trafficking in Persons (‘the ASEAN Trafficking Convention’) which follows the UN model and has similar definitions of human trafficking and objectives to punish perpetrators and protect victims. The UN Trafficking in Persons Protocol, defines ‘trafficking in persons’ as having three constituent elements: the Act (what is done); the Means (how it is done); and the Purpose (why it is done). Notably, a victim is defined as including a wide range of vulnerabilities. It is not limited to duress. There is a recognition of issues that relate to both human trafficking in organised crime and slavery in corporate supply chains. Implementation is anticipated to be through the ASEAN Plan of Action Against Trafficking in Persons, Especially Women and Children (APA) and ASEAN Guidelines on Corporate Social Responsibility in Labour (CSR).
General Principle 4 of the ASEAN Human Rights Declaration provides that ‘the rights of women, children, the elderly, persons with disabilities, migrant workers, and vulnerable and marginalised groups are an inalienable, integral and indivisible part of human rights and fundamental freedoms’, and Principle 13 provides that ‘no person shall be held in servitude or slavery in any of its forms, or be subject to human smuggling or trafficking in persons, including for the purpose of trafficking in human organs’. Article 14 of the ASEAN Convention Against Trafficking in Persons Especially Women and Children provides protective provisions including article 14(7), which provides:
‘Each party shall, subject to its domestic laws, rules, regulations and policies, and in appropriate cases, consider not holding victims of trafficking in persons criminally or administratively liable, for unlawful acts committed by them, if such acts are directedly related to the acts of trafficking’.
The ASEAN Plan of Action Against Trafficking in Persons encourages Member States to be ‘mindful of the equal rights and inherent human dignity of women, and men, as well as the rights of children’. Overall, members of ASEAN have committed to tackling human trafficking but there are a range of responses which involve both reforms to enhance the likelihood of successful prosecution and also to allow for the non-prosecution and non-punishment of trafficked persons who commit a crime. It is therefore understandable that the Philippines is taking its commitments seriously. However, reintroducing the death penalty for qualified human trafficking is counterproductive in combating trafficking. To illustrate this negative effect, it is necessary to understand the complexities of human trafficking particularly as means of an organised crime and the need for more effective protection for human trafficking victims, particularly women and girls.
Prevention of human trafficking in the Philippines
Proposed House Bill No 1,239 does not appear to have taken into account the progress of the Philippines in its programme of prevention. This has included anti-trafficking policies, now on a third strategic action plan against human trafficking (2017–2021), including analysis of ongoing efforts, key challenges and priorities, best practices, and stakeholder sustainability. There are regional taskforces and the government has collaborated with NGOs, international organisations and foreign donors to improve data collection on trafficking cases and services. There are national and regional trafficking awareness-raising events, a national prevention campaign and investigations of cases, many of which are referred to the courts. Charges have included illegal recruitment, potential victims of trafficking have been referred for protection and foreign offenders have been barred from entering the country. It appears that House Bill No1,239 is being proposed without an understanding or assessment of the effectiveness of the current national strategies for prevention.
Prosecution of human traffickers
The Philippines has responded to the above international and ASEAN commitments with legislation that criminalises human trafficking in a range of respects. These actions have led to the arrest of 689 suspects in 2018, an increase from 283 in 2017. The government initiated prosecution of 227 alleged traffickers (177 in 2017); these included 18 labour trafficking defendants, 195 sex trafficking defendants and one defendant charged with using a child for soldiering. The government convicted 77 traffickers (65 traffickers in 2017), including three for labour trafficking and 27 for sex trafficking children online. Sentences imposed ranged from four years to life imprisonment. In three cases prosecuted in prior years, the appellate courts reversed the acquittal of eight alleged traffickers and sentenced them to life imprisonment. This study does not evaluate each of these cases but recognises the ongoing provision for the prosecution of perpetrators.
The Anti Trafficking in Persons Act (RA No 9,208) defines human trafficking in the same terms as the UN Trafficking in Persons Protocol. It criminalises a range of conduct, as set out in section 4. Section 6 RA No 9,208 deals with qualified Trafficking in Persons, which is the target of House Bill No 1,239. It needs to be read together with section 4 because, for example, if the offender is a parent or the victim is a child, House Bill No 1,239 would allow for the death penalty for any form of trafficking in persons as set out in section 4. The following are considered as qualified trafficking:
In addition, accessorial liability in relation to human trafficking arises in several ways in the law of the Philippines. Accordingly, House Bill No 1,239 seeks to apply the death penalty to a range of personnel who are not the principal offenders, therefore expanding the scope for the death penalty for what would otherwise be conduct which was not heinous by way of accessorial liability. This massive extension of penalties is not referred to in the written introduction of House Bill No 1,239.
The danger with House Bill 1,239 is that the focus will be on execution rather than prevention and protection. This is not to suggest that human traffickers should not be prosecuted but that the focus should be on a range of strategies which allow for prosecution of those in leadership and controlling roles, while at the same time achieving effective crime prevention strategies and protection of victims, to include non-prosecution for those further down the chain of command. Such a differentiation is not clearly established in the current proposal for House Bill No 1,239 which particularly fails to recognise the range of preventive strategies necessary to combat human trafficking.
Protection of human trafficking victims
Proposed House Bill No 1,239 also does not appear to have taken into account the progress of the Phillipines in its programme on protection of human trafficking victims. The government has increased protection efforts. The government continued to implement formal procedures to identify trafficking victims in the Philippines and overseas and to refer them to official agencies or NGO facilities for care. Our study found that it is not possible to extract data as to how many trafficked persons were identified and protected in organised criminal networks or had been trafficked to commit crime as principal offender or as an accessory. Again, it seems that House Bill No1,239 is being proposed without an understanding or assessment of the effectiveness of the current national strategies, nor the need to provide both protection and prevention.
Non-prosecution of human trafficking victims who commit crime
In criminal justice systems, there are important questions to answer regarding the treatment of traffickers who have experienced trafficking themselves. The Philippines affords substantial legal protection to victims of trafficking, and invests in their rehabilitation. Filipino women are recognised in statute as common victims and, as such, are deserving of explicit protection. Research shows that, in the human trafficking context, women can go from victim to perpetrator. Accordingly, it is necessary to consider persons who commit crime as trafficked persons and ensure non-prosecution processes as part of the programme to protect trafficked persons. The understanding of the global human trafficking issues and the need to particularly protect women and girls will all be undermined if the death penalty were reintroduced for human trafficking with a disregard for these complex issues. Most importantly, in relation to human trafficking victims who commit crime, under RA 9,208, section 17, there is some legal protection for trafficked persons who commit crime. It reads as follows:
‘Trafficked persons shall be recognised as victims of the act or acts of trafficking and as such shall not be penalised for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant.’
Republic Act No 10,364 amends section 17 to offer legal protection to trafficked persons who committed unlawful acts as a direct result of, or as an incident in relation to being trafficked. These provisions are a clear attempt by the Philippines to protect its people – wholly contrary to the threat of the death penalty. They also give clear domestic legislative effect to the Philippines international and regional obligations. There are a series of communications coming out from the UN as to the importance of non-punishment, especially in relation to women and girls. The Office of the United Nations High Commissioner for Human Rights Trafficking Principles and Guidelines (2002), at Principle 7 states:
‘Trafficked persons shall not be detained, charged or prosecuted for their illegal entry into or residence in countries of transit or destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.’
The ASEAN Convention Against Trafficking in Persons Especially Women and Children provides protective provisions, including Article 14(7) which states:
‘Each party shall, subject to its domestic laws, rules, regulations and policies, and in appropriate cases, consider not holding victims of trafficking in persons criminally or administratively liable, for unlawful acts committed by them, if such acts are directly related to the acts of trafficking.’
The UN Trafficking in Persons Protocol supplements the United Nations Convention against Transnational Organized Crime (UNOTC) so it has long been recognised that people are trafficked in criminal networks. There are obvious examples of human trafficking in drug trafficking and begging. There is also some emerging research on how trafficked persons engage in trafficking of others in order to survive. However, it is not known how many trafficked persons are compelled to commit criminal offences or act as accessories to serious crime, or are exploited in organised criminal networks or used to facilitate multinational fraud, where there may also be a corporate overlap.
Criminal justice systems generally operate to focus on the arrest, trial and prosecution of offenders, treating any personal circumstances as factors in mitigation of sentence. Where the offender is also a victim of human trafficking, commitments to protect trafficked persons are beginning to lead to a change of approach in the criminal context through the burgeoning discourse driven by the human rights underpinning victimology. Our study found that the risks arising from a reintroduction of the death penalty would extend to employers, parents, adoptive parents, military personnel and those who play very minor roles in a trafficking network, often committed by the most vulnerable of people. While accepting that the offence requires knowledge, the risk is that the death penalty would be available for an enormous number of Philippine individuals for conduct which of itself, was not heinous, albeit assisting a trafficking network. This also risks the removal of parents from their children where the state fails to protect children from discrimination or punishment suffered due to the status or activities of their parents. It would also contravene the efforts not to criminalise HIV transmission in the Philippines through Republic Act No 11,166. If House Bill No 1,239 is enacted into law, the exploitation of vulnerable people (particularly women and children) by criminal networks will be more, rather than less, likely.
While tackling corruption and modern slavery in corporate supply chains is laudable, our study found that House Bill No 1,239 is not the solution. Its reach would affect the Philippines in the context of economic development and, in relation to government agencies to an extent which would be unmanageable. There are also dangers for mutual legal and consular assistance. The Vienna Convention on Consular Relations provides a framework for consular relations between independent countries. Article 36 provides for foreign nationals who are arrested or detained to be given notice ‘without delay’ of their right to have their embassy notified of that arrest, so that they may receive consular advice and support. There are 177 state parties to this convention. However, its use in practice is severely limited by the training of front line enforcement officers and their being made aware of the accused rights under it. Without this, many individuals on death row may make culturally inappropriate and uninformed decisions regarding their case, with lethal consequences. Such dangers require a comprehensive framework in both death penalty reform and protection of human trafficking victims, not the reintroduction of the death penalty.
Our study concluded that proposed House Bill No 1,239 is a retrograde proposal that fails to consider the legal mechanisms binding on the Philippines; fails to consider the potential consequences for the Philippines in economic and international terms; and fails to consider the impact on the criminal justice, family law and child protection systems. The proposal also fails to consider the necessary preventative strategies and protections for trafficked persons and to credit the significant programme of preventions and protections that the Philippines already has in place. Perhaps the biggest problem that is exposed by this study is an apparent lack of awareness of the complexities of human trafficking, particularly in organised criminal networks and within the context of slavery in corporate supply chains. We recommend that House Bill No 1,239 be withdrawn.
Amnesty International, ‘The Death Penalty: Criminality, Justice and Human Rights’, (online, 1 October 1997), available at: www.refworld.org/docid/3ae6a99f4.html. See also Commission on Human Rights of the Philippines and Dr Christopher Ward, SC, ‘In Defence of the Right to Life: International Law and Death Penalty in the Philippines’, 7 March 2017, available at: http://regnet.anu.edu.au/sites/default/files/uploads/2017-03/In-Defense-of-the-Right-to-Life-IL-and-Death-Penalty-in-the-Philippines.pdf, last accessed 8 July 2020.
Human Rights Committee ‘General Comment No 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights’, 30 October 2018, available at: https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf, last accessed 8 July 2020.
In Judge v Canada, the UNHRC decided that Canada had breached its obligations under ICCPR Article 6(1) when deporting the applicant without ensuring the death penalty would not be imposed. The committee referred to the ‘obligation’ not to expose a person to a ‘real risk’ of the application of the death penalty by deportation or extradition without ensuring that the death penalty would not be carried out. Communication No 829/1998, UN Doc CCPR/C/78?D/829/1998 (2003).
US Department of State,‘Trafficking in Persons Report’, June 2019, p 383 , available at: www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf, last accessed 8 July 2020.
Association of Southeast Asian Nations, ASEAN Declaration Against Trafficking in Persons Particularly Women and Children, adopted 29 November 2004, available at: https://asean.org/asean-declaration-againsttrafficking-in-persons-particularly-women-and-children-4/ /?highlight=declaration%20against%20trafficking, last accessed 8 July 2020.
ASEAN Convention Against Trafficking in Persons Especially Women and Children, signed 21 November 2015 (entered into force 8 March 2017) available at: http://agreement.asean.org/media/download/20160303122945.pdf, last accessed 8 July 2020, (ASEAN Convention Against Trafficking).
UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at: www.refworld.org/docid/4720706c0.html, last accessed 23 June 2020.
Ibid. The ASEAN Trafficking Convention is not the first instrument in the region relating to human trafficking. It reaffirmed: ‘Commitment to the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children adopted in 2004; the Criminal Justice Responses to Trafficking in Persons; Ending Impunity for Traffickers and Securing Justice for Victims in 2007’ (ASEAN Practitioner Guidelines); ‘The ASEAN Leaders’ Joint Statement in Enhancing Cooperation Against Trafficking in Persons in South East Asia in 2011’; and ‘ASEAN’s efforts in promoting human rights including the ASEAN Human Rights Declaration in 2012’.
Association of Southeast Asian Nations (ASEAN) ‘ASEAN Guidelines for Corporate Social Responsibility (CSR) on Labour’, available at: https://asean.org/storage/2012/05/ASEAN-Guideline-on-CSR-in-Labour.pdf, last accessed 8 July 2020.
Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration, 18 November 2012, available at: www.refworld.org/docid/50c9fea82.html, last accessed 16 February 2020. (ASEAN Human Rights Declaration).
ASEAN Convention Against Trafficking in Persons Especially Women and Children, signed 21 November 2015 (entered into force 8 March 2017), available at: http://agreement.asean.org/media/download/20160303122945.pdf, last accessed 17 February 2020.
United National Action for Cooperation against Trafficking in Persons, ‘ASEAN Plan of Action Against Trafficking in Persons, Especially Women and Children’, ASEAN 2015, available at: http://un-act.org/publication/view/asean-plan-of-action-against-trafficking-in-persons-especially-women-and-children/, last accessed 8 July 2020.
US Department of State, ‘Trafficking in Persons Report’, June 2019, p381, available at: www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf, last accessed 8 July 2020.
See Section 6, Anti Trafficking in Persons Act (RA No 9208), available at: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/64991/102479/F2131807484/PHL64991.pdf, last accessed 8 July 2020.
Kate Seear, ‘Impending Bali Executions Rely on Mistaken Ideas About Drugs,’ The Conversation, (online, 23 February 2015), available at: https://theconversation.com/amp/impending-bali-executions-rely-on-mistaken-ideas-about-drugs-37694, last accessed 8 July 2020.
 Alexandra Louise Anderson Baxter (2019), ‘When the Line between Victimization and Criminalization Blurs: The Victim-Offender Overlap Observed in Female Offenders in Cases of Trafficking in Persons for Sexual Exploitation in Australia’, Journal of Human Trafficking, DOI: 10.1080/23322705.2019.1578579.
Congress of the Philippines, Fifteeth Congress, Third Regular Session, Republic Act No 10,364, ‘An Act expanding Republic Act No. 9208, Entitled “An act to Institute Policies to Eliminate Trafficking in Persons especially women and children, establishing the necessary institutional mechanisms for the protection and support of trafficked persons, providing penalties for its violations and for other purposes” ’, 23 July 2012, available at: www.officialgazette.gov.ph/2013/02/06/republic-act-no-10364/, last accessed 23 June 2020.
2237 UNTS 319 Doc A/55/383, signed 15 November 2000, entered into force 15 November 2003.
Felicity Gerry, Narelle Sherwill, ‘Human Trafficking, Drug Trafficking and the Death Penalty,’ (2016) 6(3) Indonesia Law Review, 265-282.
Julia Maria Muraszkiewicz, ‘Protecting Victims of Human Traffcking From Liability: The European Approach’, Palgrave Studies in Victims and Victimology, London, (2019).
Congress of the Philippines, Seventeenth Congress, Third Regular Session, Republic Act No 11,166, ‘An Act strengthening the Philippine Comprehensive Policy on Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) prevention, treatment, care, and support, and reconstituting the Philippine National Aids Council (PNAC)’, 23 July 2018, available at: www.officialgazette.gov.ph/2018/12/20/republic-act-no-11166/, last accessed 23 June 2020.