Overview

The Commission on Human Rights of the Philippines (hereafter the 'Commission') issues this advisory to bring the Philippines' attention to the plight of overseas Filipino workers ('OFWs') who are at risk of execution abroad. This advisory highlights the vulnerable situation many OFWs find themselves in, including poor working conditions and maltreatment. Subsequently, this advisory lists reasons why foreign nationals are disadvantaged abroad, when interacting with foreign justice systems, particularly in death penalty jurisdictions. The Philippines must retain its position as a leading abolitionist state and in doing so, will retain its ability to protect OFWs, including those facing the death penalty. This advisory reminds the Philippines that it is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. The ICCPR and the Second Optional Protocol were ratified by the Philippines, and these contain express provisions defending the right to life and precluding reinstatement of the death penalty. As previous advisories issued by the Commission have stressed, the responsibility to promote, protect and fulfill human rights, and the promotion of a restorative justice system should be the agenda of the State. Modern human rights emphasize individual rights irrespective of state sovereignty.^[1] This advisory complements the previous advisories issued by the Commission that have concerned advocacy against the death penalty and challenges to the proposed legislation to reimpose capital punishment.^[2] [For more details about the Globall trend toward the abolition of the death penalty, see Appendix.]

Background

The Philippines' ratification of the International Covenant on Civil and Political Rights (ICCPR, 1966)^[3] in 1986 signalled its commitment to protecting and upholding civil and political rights, including the right to life, outlined under Article 6.^[4] This was followed by the Philippines abolishing the death penalty through the adoption of the Constitution in 9987.^[5] As a result, the Philippines became the first country in Asia to abolish the death penalty.^[6] The death penalty was reintroduced in the Philippines in 1993 and executions were carried out as recently as 1999.^[7] In 2006, the Philippines abolished the death penalty for the second time which was followed bythe ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR 2nd OP, 1989)^[8]. Article 1 of the Second Optional Protocol prohibits states from introducing the death penalty and Article 6 prevents states from withdrawing from the Protocol.^[9] There is therefore no mechanism by which the Philippines can withdraw from the Protocol; as such, the Philippines cannot introduce the death penalty as this would be inconsistent with its obligations under international law.^[10]

The Death Penalty as a Form of Torture

Traditionally, states have justified continued practice of capital punishment on the basis that this is provided for as a narrow exception to the right to life, on the condition that specific safeguards are upheld.^[11] Despite this, there is growing acceptance that the death penalty as currently practiced is irreconcilable with the prohibition against torture and cruel, inhuman or degrading treatment.^[12] This prohibition forms international customary law and must be respected by all states, regardless of whether they have ratified instruments that contain the norm.^[13] The United Nations Special Rapporteur on Torture argues that there is no "categorical evidence that any method of execution in use today complies with the prohibition of torture and cruel, inhuman or degrading treatment in every case."^[14] This proposition is also supported by the recognition that being placed on death row involves significant delay, poor prison conditions and extreme mental distress which can be equated with cruel, inhuman or degrading treatment.^[15] There is therefore evidence of an evolving standard within international law that views the death penalty as illegal due to its contravention of the prohibition against torture and cruel, inhuman or degrading treatment.^[16] Thus, there is strong authority for the proposition that as currently practiced, the death penaltyviolates international law as its application amounts to a form of torture or can be considered cruel, inhuman or degrading treatment and punishment. As a state party to the ICCPR and the Second Optional Protocol, the Philippines cannot introduce the death penalty due to its obligations under international law.^[17]

Situation of Overseas Filipino Workers

According to the Philippines Statistics Authority, the total number of Overseas Filipino Workers ('OFWs') at any time between April and September 2016 was estimated to be around 2.2 million.^[18] There are more female OFWs than male, and most OFWs come from the 25-39 age range.^[19] OFWs play an important role for the Philippines through the contribution of cash remittance inflows; in 2016, OFWs contributed $21.3 billion to the Filipino economy.^[20] Overwhelmingly, the leading destinations for OFWs are Gulf States in the Middle East - specifically, Saudi Arabia, United Arab Emirates (UAE), Kuwait and Qatar.^[21] At law, all of these states continue to apply the deatir penalty.^[22] The last reported execution in Qatar occurred in 2003 however, there are still 20 prisoners on death row in the country as of 2018.^[23] Saudi Arabia, the UAE and Kuwait all applied the death penalty in 2017, with Saudi Arabia carrying out 146 executions.^[24] A number of OFWs are also victims of human trafficking.^[25] Human Trafficking is defined in brief as the 'recruitment, transportation, transfer, harbouring or receipt of a person by means of threat or other forms of coercion, abduction, fraud, deception or exploitation'.^[26] Recruitment agencies and placement firms arrange migrant workers' travel and employment, though not always legally.^[27] Trafficked OFWs include those who were legitimately recruited, but who are deceived on the nature of the work and conditions of employment in the destination country, particularly in the Gulf States.^[28]

Treatment of OFWs

The treatment of OFWs can be dire. In 2011, an Investigating Mission of the Committee on Overseas Workers Affairs (COWA) of the House of Representatives published a report entitled 'The Condition of Overseas Filipino Workers in Saudi Arabia.'^[29] This report detailed a number of systemic problems faced by OFWs. It was noted that a number of OFWs, particularly women, reported instances of abuse, poor working conditions, bullying and unpaid salaries.^[30] The report also explains that the threat of rape and sexual assault for OFWs in Saudi Arabia is an 'ever-present specter,' and can occur both within and outside the household.^[31] Based on the COWA report, it is clear that the treatment of OFWs is often unfair and exploitative, due in part to the lack of protections for migrant workers under domestic law; this creates a situation where rights of OFWs cannot be guaranteed.^[32] Countries including Indonesia, India and Sri Lanka have all made attempts in the past to limit the number of citizens travelling to Saudi Arabia for work due to this issue.^[33]

OFWs and the Death Penalty

In April 2017, the DFA's Office of the Undersecretary for Migrant Workers' Affairs reported that 73 Filipinos were awaiting execution.^[34] The majority of these cases were in Malaysia and Saudi Arabia, with the alleged crimes including offences such as murder and drug trafficking.^[35] In light of the systematic exploitation of OFW rights, the fairness of these sentences comes into question. According to Amnesty International, migrant workers are disproportionately more likely to be executed in Saudi Arabia; between. January 1985 and June 2015, nearly half of all executions were foreign nationals.^[36] This occurs because migrant workers lack support in the country they are working and if accused of a crime, lack the language and cultural knowledge required to navigate the justice system; additionally, they are less likely to receive a pardon.^[37] The trial process in receiving countries such as Saudi Arabia can also be problematic; forced confessions obtained through torture are frequent in Saudi Arabia while detainees may also have difficulty accessing lawyers.^[38] The inability to mount a strong defence is particularly worrying, considering the culture of exploitation of OFWs detailed above. Due to lack of rights and power, OFWs are vuInerable to being scapegoated for crimes, or may have committed a crime in retaliation or self-defence due to worries about their safety. Jakatia Pawa, an OFW in Kuwait, was executed in 2017 after being accused of murdering her employers' daughter, despite a lack of DNA evidence or motive implicating her. Pawa argued that the employers were responsible for the daughter's death but on arrest was not able to access a lawyer or translator, although at trial a lawyer was provided by the Philippine embassy.^[39] OFWs who work in states which retain the death penalty are at a disproportionate risk of being placed on death row due to their lack of rights in a foreign system. In situations where a worker commits a crime because of self-defense, they may have difficulty mounting a defence due to problems navigating the justice system and they may be forced to confess. OFWs that are victims of trafficking may face criminal sanctions in foreign courts for unlawful acts that theywere coerced to commit. Reprieve London found that a number of migrant workers facing the death penalty for drug offences have been victims of human trafficking, exploited to work as drug mules.^[40] Further, vulnerable migrant workers compelled to commit crime in abusive employment conditions that amount to slavery are sentenced to death.^[41] It is widely recognized, under international human rights instruments,^[42] that, victims of human trafficking should not be punished in any form for crimes that were committed by them as a direct consequence of their situation as trafficked persons.^[43] The non-punishment principle recognizes that while a trafficking victim may have committed an offence, he or she did so without real autonomy because of the degree of control exercised over them.^[44]

Case Studies of OFWs on Death Row

Jennifer Dalquez Like many other OFWs, Jennifer Dalquez set out to work abroad to build a better life for her and her family. However, just one month before Dalquez was scheduled to return home, she was charged with killing her male employer and sentenced to death. Dalquez maintained her innocence throughout the process, arguing that she was defending herself from her employer's attempts to attack and rape her. Dalquez was subsequently declared innocent by the Court of Appeals in Al Ain. Referring to Dalquez's case, Dinagat Islands Representative Kaka Bag-ao argued that were the Philippines government to re-introduce the death penalty, it would lose its leverage in efforts to save other OFWs on deatir row, worldwide.^[45] Bag-ao highlights this underlying hypocrisy: if the Congress were to reimpose the death penalty, how can the government continue to defend the numerous Filipinos on death row abroad. Sally Ordinario-Villanueva and Ramon Credo, Elizabeth Batain Sally Ordinario-Villanueva, Ramon Credo and Elizabeth Batain, three Filipino nationals, were each arrested separately in 2008,.carrying packages of heroin into China, a crime punishable by death.^[46] The three were notified of their death sentence the day of execution, prior to which they were permitted to meet with their families for one hour. In reaction to the proposed executions, Philippine Vice President Jejomar Binay appealed to the Chinese government to keep the Filipinos alive whilst new evidence was investigated, which could have exonerated two of the three.^[47] Further, President Benigno Aquino III attributed the three Filipino's crimes to being victims of 'scrupulous' recruiters and drug traffickers.^[48] Despite this, the Filipinos were executed. Mary Jane Veloso In 2010, Mary Jane Veloso was detained in Indonesia for smuggling drugs, a crime punishable by death. Veloso has consistently maintained her innocence, claiming that her recruiter, Maria Kristina Sergio, had deceived her into flying to Indonesia with a suitcase containing over two kilograms of heroin. Spanning from 2011 to 2015, the Philippine government made multiple appeals for clemency, all of which were denied. Veloso's story has attracted significant public outcry, with an online petition ranked in the top 10 of the most signed petitions globallly.^[49] Veloso was granted a reprieve by the Indonesian government a mere few hours before her scheduled execution. Mary Jane remains on death row in Indonesia. Veloso's case highlights that when presented with real people facing the death penalty, public opinion favours a less harsh sentence such as imprisonment. As to the current status of the case, Mary Jane was initially allowed by Indonesia to testify. However, the illegal recruiters, through Public Attorneys Office Chief Persida Acosta, filed for injunction in the Court of Appeals, on the ground that the illegal recruiters' right to meet the witness against them face-to-face will be violated. The aforementioned was granted by the Court of Appeals. Mary Jane's parents then filed a case, with the assistance of the National Union of People's Lawyers, with the Supreme Court to reverse the said order, which has not yet been decided by the Supreme Court.^[50] Zaini Misrin In April 2018, Indonesian migrant worker Zaini Misrin was executed in Saudi Arabia, for allegedly murdering his employer, in spite of strong evidence suggesting otherwise.^[51] Misrin maintained that he was forced to admit to the killing after extreme intimidation and pressure from Saudi authorities. According to the Ministry of Foreign Affairs of the Republic of Indonesia, Saudi Arabian authorities failed to inform Indonesian representatives about the execution.^[52]

Contradiction in Proposed Policies

While OFWs face significant risk of being subject to the death penalty abroad, the Department of Foreign Affairs (DFA) advocates strongly for citizens in such situations;^[53] for example, the DFA provided support to Jennifer Dalquez through the provision of a lawyer and arranging for her family to travel to the UAE.^[54] However, the ability of the DFA and Philippine government to advocate on behalf of its citizens will be undermined if the death penalty is reintroduced in the Philippines. The positions taken by the government which clearly indicate a desire to reimpose the death penalty in the Philippines vis-i-vis their wish to save the lives of OFWs facing the death penalty abroad are conflicted, if not hypocritical. This argument has been applied to other states that retain the death penalty while advocating for the rights of its citizens overseas, such as Indonesia.^[55] The government of the Philippines would have more legitimacy and success in protecting its citizenry abroad if it retained its Globall position as a country without the death penalty.

Recommendations

As previous advisories have demonstrated, the world is moving toward the abolition of the death penalty; having regard to the vulnerability of OFWs to death sentences and this growing trend, the Bill to reinstate the death penalty should not be passed.^[56] The Commission calls on the State to recognize its obligations as a State Party to the ICCPR and its Second Optional Protocol. The ramifications of reintroducing the death penalty in the country have the potential to expose the Philippines to international ridicule and criticism, as it breaches numerous international rules of law.^[57] Should the Philippines retain its abolitionist stance then the capacity to protect overseas Philippine workers will also be preserved. As OFWs continue to play a quintessential role in contributing to the nation's economy, it is of crucial importance that the Department of Foreign Affairs of the Philippines ensure that the rights of OFWs are protected, and that sufficient legal aid is provided. As many OFWs are victims of human trafficking, it is recommended that national mechanisms to identify, and protect these victims are implemented. Furthermore, it is also recommended that the State should push for receiving countries to enunciate the non-punishment principle for victims of human trafficking, and work to introduce mechanisms to identify and protect said victims of human trafficking on a global scale. In addition, the State should likewise work more closely with receiving countries to recognize the disproportionate application of the death penalty against migrant workers and take measures to protect those working within its borders equally. ISSUED this 8th day of October 2018, Quezon City, Philippines.

JOSE LUIS MARTIN C. GASCON Chairperson
KAREN S. GOMEZ DUMPIT Commissioner	GWENDOLYN LL. PIMENTEL-GANA Commissioner
(On Leave) LEAH C. TANODRA.ARMAMENTO Commissioner	EUGENIO T. CADIZ Commissioner

 

 

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