Proposed Amendments to R.A.

9208:
ANTI-TRAFFICKING IN PERSONS ACT OF 2003

Submitted by

PSI MAGILAS S SALVACION PSOAC 2011-117

Submitted to

ATTY EMELY R TINIDAD

DATE

October 17, 2011

References: A. Black Dictionary 6th Edition B. Rose Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J. 205, 205-06, 2009 C. Dena Hamat & John Tribbett, A Comparative Analysis of Human Trafficking Legislation and Case Law: Suggestions for Best Practices in Creating Laws Against Human Trafficking, R76 Project, UNODC Lao P.D.R. Country Office, June - July 2009 D. Frank Laczko and Elzbieta Gozdziak, Data and Research on Human Trafficking: A Global Survey, Offprint of the Special Issue of International Migration Vol. 43 (1/2) 2005 E. Nicola Piper, A Problem by a Different Name? A Review of Research on Trafficking in South-East Asia and Oceania F. www.humantrafficking.org

Introduction
Globalization and Human Trafficking Globalization has dramatically made the world a much smaller place to live in, broken down boundaries between nations and promote exchange of business, culture and ideas. However, in each human evolution which is for the most part advantageous to our civilization, it also produces negative effects. Crime has developed through the time and it has caught up with the trend of globalization in the form of Human Trafficking. Although it has existed in the past and was an accepted mode of business in the form of slave trade, we as a society now condemn it. Cause and Effect Human trafficking is one of the most heinous crimes in the contemporary world: people are bought and sold, forced to work in the underground economy or sex industry, and often subjected to brutal violence and terrifying threats. Trafficked persons are moved across national borders; they lead invisible lives while trying to escape the police for fear of expulsion, and often endure violence and fear of retaliation. Even if these victims manage to escape, they are exposed to serious threats from their traffickers who try to find and punish them, or their families, in order to deter others from escaping. Moreover, if they are found by the police, they are normally expelled, as they are illegal immigrants. As a result, the crime perpetrated against them cannot be prosecuted, since the most informed witnesses are no longer available. Concentrating on punishing the traffickers, without offering any protection to their victims, appears to be counterproductive: victims are left to face retaliation and further violence, and the trial is often bound to end in an acquittal . . . The most recent international documents on trafficking require the adoption of a three-pronged policy, the so-called three-Ps approach, focusing on prevention, prosecution and protection. (Ref B).

Laws and Human Trafficking The perpetrators of transnational crimes, such as human trafficking, thrive in an environment in which state laws is inconsistent, non-existent, or in conflict with one another. Persons involved in the illegal international enterprises are well-versed in manipulating the forces of globalization and the present reality of easily traversed state borders. A universal approach is vital. It is in the best interest of each state to cooperate with other states in order to prevent human trafficking within their own borders (Ref C). International Attention Combating human trafficking has become an increasingly important political priority for many governments around the world. At the national level, greater efforts and resources are being devoted to combating this problem, and there is also widespread agreement in the international community on the need for a multilateral response, as reflected in the UN Protocols on trafficking and smuggling signed in Palermo, Italy, in 2000 (Ref D). South East Asia and Pacific Region Asia-specific features revolve around the large scale of undocumented or irregular labor migration, which results in a blurred distinction between trafficking and smuggling; the widespread movement of women as wives and domestic workers, in addition to sex and entertainment work; the trafficking of children for labor, sexual exploitation, and adoption; and the strong link between prostitution, sex tourism, and militarization (Ref E).

Proposed Amendments To RA 9208:

Sponsorship Speech of Senator Pia S. Cayetano In Senator Cayetanos sponsorship speech in the senate, she expressed support for Senate Bill No. 2625 under Committee Report No. 13 entitled AN ACT AMENDING 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, OTHERWISE KNOWN AS THE ANTI-TRAFFICKING IN PERSONS ACT OF 2003. She expressed concerns of amending the law because in the seven (7) years of existence of the law, it has been noticed that we are still way behind in terms of international standards. She is also concerned about the 2010 U.S. of America report that puts our countrys status as Tier 2 and maybe downgraded to Tier 3 which will result to loss of funding and several international support. The following are her proposed amendments to strengthen the law: a. Insertion of the crime of Attempted Human Trafficking; b. Insertion of the act of Adoption as a means of trafficking; c. Insertion of Temporary Custody and Interim Protection Orders to women and children who are victims of trafficking; and d. Amendment of the Confidentiality provision

My Proposed Amendments For the purpose of this assignment, I shall not repeat the above proposed amendment of Senator Cayetano. The proposals are based on international research and analysis. 1. Section 3. Definition of Terms. - As used in this Act: (a) Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph. Proposed Amendment: There should be a further definition and category of who are Trafficked Persons. A category of Willing victim should be defined and treated with different standard from an Unwilling Victim. Rationalization: Unwilling Victim A victim of human trafficking without his / her consent or knowledge of the purpose of exploitation Based on ref A, Consent is defined as follows: Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. It is a concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; approval; permission; the act or result of coming into harmony or accord. Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers. Consent is implied in every agreement. It is an act unclouded by fraud, duress, or sometimes even mistake. As used in the law of rape "consent" means consent of the will, and submission under the influence of fear or terror cannot amount to real consent. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. And if woman resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not "consent".

Consent of victim The submission of a victim is generally no defense to a crime unless, as in the case of rape, the victim's consent negatives an element of the crime itself (Ref A). As applied in Human Trafficking Based on above definitions, a person is deemed unwilling victim if there was no consent or knowledge given. Consent can be given in the beginning where he / she were defrauded on the real intention of exploitation or throughout the process until the discovery of the true purpose of exploitation. However, if known already to her the true purpose of exploitation, there can never be consent where force, violence, intimidation, coercion and manipulation is employed including where the victim has no choice but to comply out of survival. The unwilling victim may have even learned to enjoy the exploitation and eventually considered it to be a norm because of misguided truth or under the influence of drugs or addicted to it. Willing Victim A victim of human trafficking with his / her consent or knowledge of the purpose of exploitation. The consent to be exploited is evident when after rescue and eventual proper critical incident debriefing has been done, he / she is still violent towards rescuers and insists that they are not doing anything wrong and that their rescue is unnecessary and that it has taken them away from their only source of livelihood. It is against normal human nature to refuse the chance to have a better life. 2. Section 3. (c) Prostitution - refers to any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration Proposed Amendment and Rationalization: Prostitute versus Commercial Sex Worker In connection with the preceding proposed amendment of categorizing victims, the term prostitution should be elaborated further with the term commercial sex work. With trafficking being strongly linked to the issue of sexual exploitation, this involves a debate which revolves around two fundamentally opposed views regarding the legitimacy of the sex industry, and thus, also around the choice of terminology. It is, in particular, the issue of consent which is highly contested, with some proponents arguing that a woman never consents to working in prostitution and that she is driven by socio-economic circumstances seriously limiting her choices (Ref E). Other countries legalized sex trade as a form of business. In our country, prostitution is prohibited. In my opinion, commercial sex workers should be viewed as professionals in their line of sexpertise and offer it to customers for a fee. Hence, commercial sex workers are willing victims and prostitutes are unwilling and forced labors, who are just in it to survive but given the chance to have another means of living, would choose otherwise.

3. Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or facilitate trafficking in persons, shall be unlawful: Proposed Amendment and Rationalization: Is Commercial Sex Work Unlawful? The commercial sex worker should be included as those persons who promote human trafficking. If a person who maintains and engages in prostitutes are seen as offenders, those who engages as a commercial sex worker incur liability. Since our country does not tolerate and even penalizes any form of sex trade, this amendment will further cement our stand against it. 4. Section 10. Penalties and Sanctions. - The following penalties and sanctions are hereby established for the offenses enumerated in this Act: (a) Any person found guilty of committing any of the acts enumerated in Section 4 shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00) Proposed Amendment: There are two proposals: a. Increase the fine b. Payment of Damages to Each Victim Rationalization: Two million pesos is not enough fine for a thirty-two (32) billion dollars enterprise worldwide. As stated in Senator Cayetanos speech, 60,000 is the least estimated number of trafficked person per year. If equate the number of trafficked person to one hundred pesos per person, then that is a total of six million pesos worth of profitable business enterprise. It means that two million pesos is nothing. Although it is an exaggeration on my part that a single person or organization can generate that much of trafficked persons, in my opinion, increasing the penalty mean we are serious in eliminating, if not mitigating, human trafficking in our country. Also, there should be compensation for each of the victim of human trafficking to be paid as indemnity by the offenders. The government should not alone be giving benefits to the victims. 5. Section 15. Trust Fund. - All fines imposed under this Act and the proceeds and properties forfeited and confiscated pursuant to Section 14 hereof shall accrue to a Trust Fund to be administered and managed by the Council to be used exclusively for programs that will prevent acts of trafficking and protect, rehabilitate, reintegrate trafficked persons into the mainstream of society. Such programs shall include, but not limited to, the following: (b) Sponsorship of a national research program on trafficking and establishment of a data collection system for monitoring and evaluation purposes; Section 20. Inter-Agency Council Against Trafficking. - There is hereby established an Inter-Agency Council Against Trafficking, to be composed of the

Secretary of the Department of Justice as Chairperson and the Secretary of the Department of Social Welfare and Development as Co-Chairperson and shall have the following as members: Functions of the Council. - The Council shall have the following powers and functions: (a) Formulate a comprehensive and integrated program to prevent and suppress the trafficking in persons; (b) Promulgate rules and regulations as may be necessary for the effective implementation of this Act Proposed Amendment: Formulation of programs and promulgation of rules and regulations should be based on local evidence-based research. Rationalization: In connection to section 15(b) and 20(a & b), research should play a big role and prioritized. Based on the website humantrafficking.org, a consultant was hired to compile the gathered information in a final report and prepare the executive summaries on the basis of the results of the developed research studies for the Philippines, to wit: a. b. c. d. e. f. A Cross-Analysis Report on Smuggling and Trafficking from the Philippines into Australia (carried out by the Australian Institute of Criminology); Illegal Practices and Criminal Networks involved in the Smuggling of Philippines into Italy (carried out by UNICRI); Trafficking into Japan (carried out by the UN University); Trafficking in Sabah, Malaysia (carried out by the University of Kebangsaan Malaysia); Trafficking in the Philippines (carried out by the Philippine National Police Commission); Repatriating Philippine victims of traffic

It is very strange that upon doing this assignment that there have been numerous research done about human trafficking in other countries. Based on above data, most were conducted by foreign researchers and only one, to which I am still unaware, was done by NAPOLCOM. It is my opinion that the academic sectors of our society are well capable (UP was hailed as a Research University) should be included in the council. They shall be the one who will conduct the research to serve as basis for the formulation of programs and promulgation of rules and regulations. We should be mindful of localized evidence-based practice and less reliant to foreign literatures. The latter is just a reference. I believe that we are not in short supply of great researchers and can come up with our own data base to which we can rely rather than rely on Guesstimates.