 |  |  |
| Trafficking | ||||||||||||||
|
| ||
| |||||||||||||
| The Gaps in the Filipino Laws on Trafficking
(This position paper was submitted in the "Public Consultation Workshop on RA No. 9208 and its Draft Implementing Rules and Regulations" held at the DSWD Auditorium, Department of Social Welfare and Development, Batasan Hills, Diliman, Quezon City) This analysis is based on a comparison between the Filipino laws RA 7610 (the Special Protection of Children Act) and RA 9208 (the Anti Trafficking in Persons Act) newly enacted and the UN Protocol on Trafficking, Especially in Women and Children. |
|
The two main gaps of the Filipino laws related to Trafficking are Criminalization and Children. In accordance with the structure of the UN Protocol, the study will be focusing on the three aspects contented in the UN Protocol: Prosecution, Protection and Prevention. As a general observation of the Filipino regulations and more specifically RA 9208, Prosecution is too detailed in some points and lacking in others, Protection is too general and as for Prevention it could be more complete. I. CRIMINALIZATION: PROSECUTION UN Protocol on Trafficking, Especially in Women and Children, Article 5 Criminalization of Acts in Trafficking in Persons: 3 Categories of acts are registered as criminal offenses:
It is important to keep this UN Protocol article in mind, when you undertake a deeper analysis of the two Filipino laws, RA 7610 and RA 9208. Whenever you look through quickly the second law, you would be tempted to get impressed by the list of different acts considered as a Trafficking offence (Section 4), some are even considered as being "Qualified Acts of trafficking" (Section 6). Furthermore, the law contains also an impressive list of acts "promoting trafficking"(section 5). However, by listing the different situations of trafficking and trying to be as detailed and complete as possible, the effect will be opposite: indeed it excludes others possibly not mentioned. Therefore, in each listing, it should be specified that it is not exclusive. Moreover, when you go further in your analysis, you realize that there is no mention, no provision related to the attempt of the trafficking act, whereas also organizing or directing persons to commit a trafficking offence is not criminalized and therefore is not penalized. Whenever you look through quickly the second law, you would be tempted to get impressed by the list of different acts considered as a Trafficking offence (Section 4), some are even considered as being "Qualified Acts of trafficking" (Section 6). Furthermore, the law contains also an impressive list of acts "promoting trafficking"(section 5). However, by listing the different situations of trafficking and trying to be as detailed and complete as possible, the effect will be opposite: indeed it excludes others possibly not mentioned. Therefore, in each listing, it should be specified that it is not exclusive. Moreover, when you go further in your analysis, you realize that there is no mention, no provision related to the attempt of the trafficking act, whereas also organizing or directing persons to commit a trafficking offence is not criminalized and therefore is not penalized. According to the trafficking protocol and the definition of the Anti-Trafficking act, the trafficking act is constituted of three elements: physical movement / transportation, strategies / ways, and the exploitation / violation of human rights. a. Definition of attempt There is attempt when the offender commences the commission of the felony directly by overt acts but did not perform all the acts of execution, which should produce the felony by reason of some cause or accident other than his spontaneous desistance. b. The attempt of trafficking An attempt of trafficking would be to undertake an act of trafficking but to fail in its accomplishment. As an example, it could be when you recruit a person but are apprehended/stopped before arriving at the final destination. According to the Trafficking Law, it should be considered as an offence of trafficking as that the recruitment itself is trafficking. However, the three elements constituting the trafficking act are not gathered, the exploitation factor is not consummated yet. Therefore, the law enforcers would find it hard to prosecute and classify the case. It remains particularly difficult for the law enforcers to prove that there was trafficking when there was no exploitation yet. Therefore, such a situation should be considered and qualified as an ATTEMPT. This way, the prosecutor won't have to prove that there was exploitation but INTENTION of committing a trafficking act: that the overt acts were leading to the commission of trafficking, directly aimed in its execution, and therefore had an immediate and necessary relation to the trafficking act. Although the professionals who participated in the writing of the Anti-Trafficking Bill consider that there was no use to mention the attempt as it is already considered as a trafficking act (example, recruiting and transporting but had not arrived at final destination: it is an attempt of trafficking but should be considered as trafficking act) in practice, the situation is opposite. Indeed as the attempt is never mentioned, the word never appears in any section of the law, law enforcement will not register the attempt as a trafficking offense. The word ATTEMPT needs to be written down to be effectively taken into consideration. However, one could try to refer to RA 7610 which has a special provision on the attempt of "Child trafficking" in its Article IV, Section 8 but then the provision tries to identify the various situations of attempts through another "list", limiting the real and practical application of the section. Although this list has a provision related to children traveling alone, the attempt would be assumed if in a foreign country; domestic trafficking is not taken into account. The "list" only contains situations of trafficking through adoption. That is to say that this section 8 is useless in cases of internal trafficking of child domestic workers. Organizing, directing the trafficking process Most of the time, the owners of the recruitment agencies are the head of the trafficking process. They are the ones organizing, employing and directing recruiters and headhunters in provinces to find children. The owners are the ones who establish quotas, and organize the transportation, or even finance the different expenses to bring the victims to their destinations. However, through RA 7610 and 9208, the owners will not be penalized personally, but indirectly through their establishment: the establishment can be closed down with a "sign" with the words "off limits" (RA 7610 Section 11) or their license to operate will be cancelled and revoked permanently (RA 9208 Section 10 (f)). Yes, but is this non-criminal sanction severe enough for the HEAD, the organizer of the trafficking process? Will he or she not be prosecuted personally? Eventually, they could be prosecuted for " Acts that Promote Trafficking in Persons" that is to say as accomplice and therefore sentenced with a lower penalty. Furthermore, although recruitment agencies are predominant in the Philippines and are more likely to undertake illegal recruitment or trafficking, there is no mention of recruitment agency in the Anti-Trafficking Law. Regarding the Law on Child Abuse, RA 7610, Article VII, Section 11 (on Sanctions for Establishments or Enterprises), recruitment agencies are mentioned, yet they would only be sanctioned if the trafficked child is sexually exploited (sex tourism, producing indecent shows, in sauna or spa). Therefore, such a precision limits the possibility of applying this disposition, particularly in cases of economically exploited children through forced labor (domestic work). No disposition in RA 9208 or in RA 7610 criminalizes the organization or the direction of the trafficking process. There is definitely a need to have a direct participation through acting and not through planning to be prosecuted in the Philippines for trafficking. ACTION, NOT PLANS The Filipino law only penalizes concrete effective direct trafficking acts. The Filipino law does not take into account the brain exercise nor thoughts: attempts (you thought of doing a trafficking act but it failed for a reason or another) or organizing (you planned the trafficking process) 1. Protection UN Protocol Article 6: Assistance to and protection of victims of trafficking in persons a. Information on the legal rights of the victims Article 6, 3. Each State Party shall consider implementing measures for the physical, psychological and social recovery of victims of trafficking in persons (�)
Among the assistance provided to the victims of trafficking in RA 9208, legal counseling is not specified. Indeed, legal assistance and counseling on their rights should be provided to the victims even though they decide not to pursue a case against their traffickers. Furthermore, there is a need to adapt this UN disposition to the Filipino situation and specify that this legal assistance will be provided in a language or a dialect that the victim can understand. 3 (c) Medical, psychological and material assistance In the assistance addressed to the victims of trafficking in RA 9208:
c. Special concern for the special needs of the child Article 6, 4.: " Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care". There should be a special concern, at least a section, a disposition, a paragraph related to the assistance given to the child victim of trafficking in accordance with his special needs. In RA 9208, there is no mention of the medical care provided to the child, the psychological help, the appropriate housing (will s/he be lodged in the same house with adult victims of trafficking?) or even educational assistance. The disposition related to assistance of the trafficked victims in RA 9208 Section 16 is too generalized, making no difference if the victim is an adult or a child. The special needs of the child are not taken into account; they are not even mentioned. Prevention As domestic trafficking is prevalent in the Philippines especially for children, the law should take into account this particular situation and adapted itself to national circumstances.
The customs should also establish stricter mechanisms of control.
For inquiries, please contact: Roland Pacis
|
