The Baby Merchants - Part 3

By Raissa Robles, Newsbreak

Posted at Jun 04 2009 01:31 PM | Updated as of Jun 04 2009 09:42 PM

Comedy of errors weakens child trafficking case

When Jala Jala police chief Larry Malaybalay found 11 adults including a foreigner in possession of nine babies and no papers to show why they were there, he suspected this to be a case of child trafficking.

What happened next seemed like a comedy of errors that could weaken any case filed altogether.   

Rizal provincial prosecutor Edgardo Bautista told Newsbreak on Monday, May 11, that he was “contemplating” on dismissing the case “because the charge is wrong,” the arrests were illegal and the orphanage had a permit to operate.

He said his unsigned resolution was now with Justice Secretary Raul Gonzalez. 

In an interview, Justice Gonzalez said, “I was informed by the prosecutor that the case was dismissed because there was no proof, (and) that this group was working for an NGO abroad which takes care of abandoned children. There are even statements from some of the parents that they cannot take care of the children anymore.”

“I told the prosecutor to send me the records of the case,” he told Newsbreak. He also suggested that Newsbreak talk to prosecutor Bautista.

At the onset, Chief Inspector Malaybalay said he had suspected that those he arrested had committed the non-bailable capital crime of syndicated child trafficking. But when the time came to charge them, he dusted off a 25-year-old law which allowed those he arrested to post bail a week later.

If found guilty, their punishment would be a simple slap on the wrist – a month in jail and a P200 fine – for the crime of operating a colorum orphanage under Ferdinand Marcos' Presidential Decree 603 of 1974.  

Lawyer Sally Escutin, chief of the Department of Social Welfare and Development (DSWD) legal service, told Newsbreak she was dismayed when she read the charge. Especially since DSWD Secretary Esperanza Cabral had issued “a very strong warning to all those who engage or plan to engage in human trafficking....they will be dealt with accordingly, with the full force of the law.”     

“Why did the police use that law” instead of more recent and stronger laws,” she wondered.

Malaybalay's explanation to Newsbreak surprised Escutin. He said the charge was recommended “by Mrs. Virginia Arinasa of DSWD Region 4-1 during a case conference on December 17.” Since DSWD was the lead agency, they followed it.

“I asked her (Arinasa) what kind of case should be filed against Irene Low,” he said. “She said, 'PD 603 na lang' (Let's just use  PD 603),” he quoted Arinasa as saying.

His assertion was supported by another police official in a separate interview. Senior Inspector Evangeline Santos, chief of the Rizal provincial police station women's desk, said: A case of violating PD 603 was “recommended by the regional office of DSWD, but if you look at the case elements it's really a violation of anti-trafficking.”

Escutin said she would look into why Arinasa gave such an advice. Offhand, she said, it could be because the elements of trafficking, such as the purchase of the infants from the mothers, were not evident then. “It takes time for you to get the evidence.” 

Escutin added that they have tried to correct the mistake by filing an amended complaint using “Republic Act 9208 ("Anti-Trafficking in Persons Act of 2003) in relation to  RA 7610 (Anti-Child abuse law).”

But even the amended charge may not fly in court, according to Amihan Abueva, national coordinator of Asia Acts, an NGO watchdog on child trafficking.

It was Abueva who first called attention to the second mistake through  Newsbreak researcher Ana Bueno. She told Bueno that RA 9208 was also the wrong law to charge Irene Low with.

She explained that with RA 9208, one has to prove that “the purpose of adoption is for exploitative purposes. It's very hard to prove that at this point because the kids are still babies.”

Abueva said the more relevant law to charge them with would be RA 7610 – the first Philippine statute defining child trafficking as a crime. It defines a child trafficker as “any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter.” It becomes a capital crime when the victim is under 12 years old.

Falsifying birth certificates is also regarded as an attempt to commit child trafficking.

“We do have a lot of laws on children but up to now we are still training people (in government) how to use various laws...and it takes time,” she said. 

In this case, “we are a bit lucky, the police was actually quite alert,” she added.

Upon further investigation, Newsbreak found that the Philippines has four laws defining and punishing child trafficking:

RA 7610 - Anti-Child Abuse Law of 1992

RA 8043 - Inter-Country Adoption Act of 1995

RA 8552 - Domestic Adoption Act of 1998

RA 9208 - Anti-Trafficking in Persons Act of 2003

Except for RA 9208, the three earlier laws already have sections which Low and her co-accused may have violated.

Interestingly, an anti-trafficking book distributed to all police precincts and funded by the United States Agency for International Development (USAID) merely discusses and provides the full text of RA 9208, to the utter neglect of the three other laws, which define child trafficking in the context of illegal adoptions.

Prosecutor Bautista said he was thinking of recommending the filing of new charges using RA 7610 and RA 8043.

In RA 8043, all foreign adoptions which are not authorized by the Inter-Country Adoption Board are considered syndicated child trafficking if undertaken by at least three persons and involve at least two children.

Bautista also said he did not think the use of RA 9208 of Anti-Trafficking Law was correct in this case because “the adopted children were not used for illegal purposes like prostitution, child labor and other illegal acts.”

However, he conceded that his yet unsigned resolution could affect any new case if Gonzalez backs it. In that resolution, Bautista said the arrests were illegal because the warrant used by the police was for another case and the seizure of the babies had no warrant.

In addition, he said the child caring facility had a permit to operate at the time of the arrest. He said the main theme of his resolution revolved around the question - “why do you punish persons when they are helping others?”

His unsigned resolution is now under review by the justice secretary.

Escutin of DSWD conceded that Low may be doing good and may have placed unwanted Filipino babies in loving homes. But she questioned why Low was charging so much for her services and doing it behind the government's back.

She also said babies that are traced would not necessarily be taken away from their adoptive parents but could be “reprocessed” by the Philippine government to legalize their status if found that the parents were taking good care of them.