If a law stipulates that it will take effect 15 days after publication in two newspapers of general circulation or the Official Gazette, what will happen to it if it isn’t published at all even though it has been duly passed by Congress and signed into law by the president?

Apparently it remains a non-law, no different from an undelivered, breathing full-term baby in the womb who cannot possess the legal status of a natural person, yet.

This undelivered state is where the “IHL Law” or the “Philippine Act on Crimes Against International Humanitarian Law (IHL), Genocide and Other Crimes Against Humanity” (Republic Act 9851) is now: passed by both Houses on October 14, 2009, signed by the president on December 11, unpublished two months later.

The IHL law penalizes war crimes, genocide (def.: acts that destroy in part or in whole a national, ethnic, religious, social , or any other stable or permanent group), and crimes against humanity (def.: intentional acts committed as part of a widespread and systematic attack against a civilian population).

Since we remain a country with many civil wars, the protection provided by the IHL Law to civilians and combatants alike are of immediate importance. Besides, lawyer Soliman Santos, Jr., pointed out, genocide and crimes against humanity can happen – and be penalized – even in non-war situations (such as the Maguinadnao massacre). The law will also protect the millions of overseas Filipinos working in conflict areas around the world because its punitive aspects apply to persons, regardless of nationality or location, who commit any of the prohibited acts on a Filipino citizen.

Some defense and security officers are probably thinking, now here’s another law intended to tie their hands and persecute them, leaving them fully convinced that human rights are only for the human leftists. But detractors ought to know that the responsibility to uphold IHL falls on armed groups as well, especially those who can lay claim to any respectability as a “legitimate armed group” in the sense that they have an organizational command that can enforce discipline on their members, and actual control of some territory. In other words, the IHL Law also protects government soldiers who of course have rights. It evens the playing field in that it compels and exacts accountability from armed groups fighting the government since they are equally liable for any IHL violation.

In fact, it compensates for the weakness of one other recently signed law, the Anti-Torture Act, which penalizes only those acts constituting torture committed by state agents. Armed, non-state groups can be duly charged for any IHL violation, including torture, under the IHL Law.

The government supposedly has been unable to publish the IHL law due to lack of funds. If this were so, how come the government can allocate huge amounts of money to advertise the achievements of the outgoing presidency? When fully effected through publication, this is one legacy, not only of the signing authority but of the 14th Congress that passed it and of the civil society organizations and the International Committee of the Red Cross (ICRC) that worked hard to move the legislative mill. Just publish it now.

I’ve asked several lawyers what can be done to compel publication by the Executive. Apparently there is no specific crime that applies to a non-publication of a law duly passed by Congress and signed by the president him/herself, even though such non-action is effectively thwarting the law. Publication in a newspaper was allowed post-Marcos when it was found that many of Marcos’s decrees were not published in the Official Gazette. But this was an option, an additional recourse provided to hasten publication, not to cause it.

Can one file a writ of mandamus? Can a third-party like a civil society organization cause its publication – will it then take into effect? Or are we entirely at the mercy of the wrong priorities or lack of diligence of the Executive?

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At the least, the Anti-Torture Act (Republic Act 9745) was signed and published with relative dispatch. Passed by both Houses on September 2, 2009, signed on November 10 by President Macapagal Arroyo, it was published in two national newspapers on November 17.

But even this fairly smooth process from Congress to the presidency to the newspapers was too late for four members of the Dumagat tribe in Aurora province who claim they were tortured by several soldiers of the 48th Infantry Battalion. Since the alleged acts were committed on December 1, and the law after 15 days of publication took effect only on December 3, the four Dumagats cannot avail of the remedies that the law provides, even though the assault on their persons are the very elements penalized.

The Philippine Daily Inquirer in a January 10 report recounted the four men’s harrowing experience:

“The victims said they were brought to different parts of the camp after they failed to show their barangay clearances to the police.

Each one said they were punched, kicked and strangled, and hit with lead pipes and Armalite rifles in different parts of their bodies while they were being interrogated and forced to admit they were members of the New People’s Army.

They were also forced to do work inside the camp like splitting wood, fetching water and picking up garbage. They were also used by the soldiers for their amusement. … (One) was made to dive into the water and when he emerged, the soldiers laughed at him. …

(Another) said he was reduced to tears when one of the soldiers told him to jump into a hole which would be his grave.”

These allegations constitute a classic case of torture. The reported acts were committed intentionally by persons in authority against persons in their custody for the purpose of coercing a confession, punishing, and intimidating, and in so doing cause the suffering, gross humiliation or debasement of the latter – torture itself as defined in Section 3(a) and (b) of the law. No gray area here given the general circumstances, except for the burden of proof as to the veracity of particular acts committed by particular state agents in the court of law.

Sure, the four victims can claim redress under physical injury or illegal detention provisions in the Revised Penal Code. But the gravity of the act coupled with the intent, and the whole institutional context that led to the crime against them would be lost. The state, moreover, cannot be compelled to provide support for the victims nor to make the commanding officers of those who committed the acts accountable. All these rights and benefits were denied because the Anti-Torture Act that provided them with these legal remedies had not been published two days earlier.

Any single-day delay in effecting a human rights or humanitarian law certainly matters. Rights delayed are rights denied.

E-mail: mcf178@yahoo.com