philippine anti-enforced disappearance (report)

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Philippine Anti-EnforcedDisappearance law

R. A. No. 10353

GASCON, DEXTER L. VILLANUEVA, KARYL



• December 21, 2012

• President Aquino

•

The first of its kind in Asia• In connection with this: President urged by the

Human Rights Watch to also sign theInternational Convention for the Protection of

All Persons from Enforced Disappearance



SEC. 2. Declaration ofPolicy. –

• The State values the dignity ofevery human person and guarantees fullrespect for human rights for which highest

priority shall be given to theenactment of measures for theenhancement of the right of allpeople to human dignity, theprohibition against secret detention places,solitary confinement, incommunicado, orother similar forms of detention, the provisionfor penal and civil sanctions for suchviolations, and compensation andrehabilitation for the victims and



• their families, particularly with respect to theuse of torture, force, violence, threat,intimidation or any other means which vitiatethe free will of persons abducted, arrested,detained, disappeared or otherwise removedfrom the effective protection of the law.



• Furthermore, the State adheres tothe principles and standards onthe absolute condemnation of

human rights violations set bythe 1987 PhilippineConstitution and various internationalinstruments such as, but not limited to, theInternational Covenant on Civil and Political Rights

ICCPR), and the Convention Against Tortureand Other Cruel, Inhuman or Degrading Treatmentor Punishment CAT), to which the Philippinesis a State party.



Enforced or involuntarydisappearance

• refers to the arrest, detention, abduction or anyother form of deprivation of liberty committedby agents of the State or by persons or groups ofpersons acting with the authorization, supportor acquiescence of the State, followed by arefusal to acknowledge the deprivation ofliberty or by concealment of the fate orwhereabouts of the disappeared person, which

places such person outside the protection of thelaw. (sec.3, b)



Rights & Exemption



SEC. 4. Nonderogability of the RightAgainst Enforced or InvoluntaryDisappearance.

• The right against enforced or involuntarydisappearance and the fundamental safeguards

for its prevention shall not be

suspended under anycircumstance including politicalinstability, threat of war, state of war or other

public emergencies.



SEC. 5. “Order of Battle” or Any Order ofSimilar Nature Not Legal Ground forEnforced or Involuntary Disappearance

• An “Order of Battle” or any order of similarnature, official or otherwise, from a superiorofficer or a public authority causing thecommission of enforced or involuntary

disappearance is unlawful and cannot beinvoked as a justifying or exempting

circumstance. Any personreceiving such an ordershall have the right todisobey it.



SEC. 6. Right of Access toCommunication.

• It shall be the absolute right ofany person deprived of

liberty to have immediateaccess to any form ofcommunication available in

order for him or her to inform his or her family,relative, friend, lawyer or any human rightsorganization on his or her whereabouts andcondition.



SEC. 20. Exemption fromProsecution .

• Any offender who volunteersinformation that leads to the discovery ofthe victim of enforced or involuntary

disappearance or the prosecution of theoffenders without the victim beingfound shall be exempt from anycriminal and/or civil liability under this

Act: Provided, That said offenderdoes not appear to be the mostguilty



SEC. 25. Applicability ofRefouler

• No person shall be expelled, returned

or extradited to another State where

there are substantial grounds to believethat such person shall be indanger of being subjected toenforced or involuntary

disappearance.



Sec. 25

• For purposes of determining whether suchgrounds exist, the Secretary of the Department,of Foreign Affairs (DFA) and the Secretary ofthe Department of Justice (DOJ) incoordination with the Chairperson of the CHR,shall take into account all relevantconsiderations including where applicable andnot limited to, the existence in the requestingState of a consistent pattern of gross, flagrantor mass violations of human rights.



SEC. 26. Restitution and Compensation toVictims of Enforced or InvoluntaryDisappearance and/or Their ImmediateRelatives

• The victims of enforced or involuntary

disappearance who surface alive shall beentitled to monetary

compensation, rehabilitationand restitution of honor andreputation. Such restitution of honor andreputation shall include immediate expunging orrectification of any derogatory record, informationor public declaration/statement on his or her person,personal circumstances, status, and/ororganizational affiliation by the appropriategovernment or private agency or agenciesconcerned.



DUTIES



SEC. 7. Duty to Report Victimsof Enforced or InvoluntaryDisappearance. –

• Any person, not being a principal, accomplice oraccessory, who has an information of a case ofenforced or involuntary disappearance… shallimmediately report in writing thecircumstances and whereabouts of thevictim to any office of… the Department of theInterior and Local Government (DILG), theDepartment of National Defense (DND), thePhilippine National Police (PNP), the ArmedForces of the Philippines (AFP), the NationalBureau of Investigation (NBI), the City orProvincial Prosecutor, the Commission onHuman Rights (CHR) or any human rightsorganization and, if known, the victim’s family,relative, or lawyer.



SEC. 8. Duty to Certify in Writing onthe Results of Inquiry into a ReportedDisappeared Person’s Whereabouts

• An inquiry “on the presence or whereabouts of areported victim of enforced or involuntarydisappearance, such member or officialshall immediately issue a

certification in writing to theinquiring person or entity onthe presence or absence and/orinformation on the whereabouts

of such disappeared person, stating,among others, in clear and unequivocal manner thedate and time of inquiry, details of the inquiry andthe response to the inquiry.”



SEC. 11. Submission of List ofGovernment DetentionFacilities. –

• Within six (6) months from the effectivity of this Act and as may be requested by the CHR

thereafter, all government agencies

concerned shall submit anupdated inventory or list of allofficially recognized andcontrolled detention or

confinement facilities, and the list ofdetainees or persons deprived of liberty undertheir respective jurisdictions to the CHR.



SEC. 13. Visitation /Inspection ofPlaces of Detention andConfinement.

• The CHR or its duly authorized

representatives are hereby mandated

and authorized to conduct regular,independent, unannounced and unrestrictedvisits to or inspection of all places of detentionand confinement.



SEC. 24. State Protection

•The State, through its appropriate

agencies, shall ensure the safety ofall persons involved in the search,

investigation and prosecution of enforced orinvoluntary disappearance including, but notlimited to, the victims, their families,complainants, witnesses, legal counsel andrepresentatives of human rights organizations

and media. They shall likewise beprotected from any intimidationor reprisal.



Liabilities & penalties



SEC. 14. Liability ofCommanding Officer orSuperior.

• The immediate commanding officer of the unitconcerned of… law enforcement agencies

shall be held liable as a

principal to the crime ofenforced or involuntarydisappearance for acts

committed by him or her that shallhave led, assisted, abetted or allowed, whetherdirectly or indirectly, the commission thereof byhis or her subordinates.



Sec. 14

• If such commanding officer hasknowledge… did not t ke

preventive or coercive actioneither before, during or immediately after itscommission, when he or she has the authority toprevent or investigate allegations of enforced orinvoluntary disappearance but failed to prevent orinvestigate such allegations, whether deliberately or

due to negligence, shall also be heldliable as principal.



SEC. 15. Penal Provisions

(a) The penalty of reclusion perpetua and itsaccessory penalties shall be imposedupon thefollowing persons:

(1) Those who directly committed the act ofenforced or involuntary disappearance;

(2) Those who directly forced, instigated,

encouraged or induced others to commit the actof enforced or involuntary disappearance;



(3) Those who cooperated in the act of enforced orinvoluntary disappearance by committinganother act without which the act of enforced orinvoluntary disappearance would not have been

consummated;(4) Those officials who allowed the act or abetted

in the consummation of enforced or involuntarydisappearance when it is within their power tostop or uncover the commission thereof; and

(5) Those who cooperated in the execution of theact of enforced or involuntary disappearance byprevious or simultaneous acts.



(b) The penalty of reclusion temporal and itsaccessory penalties shall be imposed upon thosewho shall commit the act of enforced orinvoluntary disappearance in the attemptedstage as provided for and defined under Article6 of the Revised Penal Code.



(c) The penalty of reclusion temporal and itsaccessory penalties shall also be imposed uponpersons who, having knowledge of the act ofenforced or involuntary disappearance andwithout having participated therein, either asprincipals or accomplices, took part subsequentto its commission in any of the followingmanner:



(1) By themselves profiting from or assisting theoffender to profit from the effects of the act ofenforced or involuntary disappearance;

(2) By concealing the act of enforced orinvoluntary disappearance and/or destroyingthe effects or instruments thereof in order toprevent its discovery; or

(3) By harboring, concealing or assisting in the

escape of the principal/s in the act of enforced orinvoluntary disappearance, provided suchaccessory acts are done with the abuse ofofficial functions.



(d) The penalty of prision correctional and itsaccessory penalties shall be imposed againstpersons who defy, ignore or unduly delaycompliance with any order duly issued or

promulgated pursuant to the writs of habeascorpus, amparo and habeas data or theirrespective proceedings.



(e) The penalty of arresto mayor and its accessorypenalties shall be imposed against any personwho shall violate the provisions of Sections 6, 7,8, 9 and 10 of this Act.



SEC. 16. Preventive

Suspension/Summary Dismissal.

• Government officials and personnel who arefound to be perpetrators… as a result of apreliminary investigation conducted for that

purpose shall be preventivelysuspended or summarilydismissed from the service,depending on the strength ofthe evidence so presented and gatheredin the said preliminary investigation or as maybe recommended by the investigating authority.



SEC. 17. Civil Liability.

• The act of enforced or involuntary

disappearance shall render its

perpetratorsand the State agencies

which organized, acquiesced in or tolerated

such disappearance liable undercivil law.



SEC. 18. IndependentLiability.

• The criminal liability of the offender under this

Act shall be independent of or

without prejudice to the prosecution

and conviction of the said offender for anyviolation of Republic Act No. 7438 ; Republic ActNo. 9745; and applicable provisions of theRevised Penal Code.



SEC. 23. Special AmnestyLaw Exclusion.

• Persons who are changed with and/or guilty ofthe act of enforced or involuntary

disappearance shall not benefit

from any special amnestylaw or other similarexecutive measures that

shall exempt them from any penalproceedings or sanctions.



• Two cases of disappearance reported to humanrights groups after enactment of Anti-EnforcedDisappearance Law

• Philippines: Milestone Law Criminalizes ForcedDisappearances



Protecting the Children ofthe Lost

• The Philippines has had its own historyof enforced disappearance and wrongfulremoval of children. The case involving

the enforced disappearance of Universityof the Philippines students KarenEmpeño and Sherlyn Cadapan isdisturbing on a number of levels, not the

least of which is Cadapan’s reportedpregnancy during captivity.



• Apart from what her fate isnow, her reported pregnancy

raises questions about thepossible outcome of herpregnancy and, if allowed tocome to full term, the fate ofher child.



• Philippine laws have only recentlystarted addressing the matter of theenforced disappearance and the wrongful

removal of children. There is, as yet, nodomestic law clearly defining andpunishing these human rights violations.While an assortment of laws may be

brought to bear upon them, these lawsstill fall short of complete recognition ofthe rights not to be subjected to theenforced disappearance and to thewrongful removal of children.



• Philippine laws dealing with theenforced disappearance and thewrongful removal of children are

considerably less developed. Therelevant domestic laws are notsufficiently particularized to

address these violations. Theabsence of a statute defining andpunishing them highlights thelimitations of the law.



• While there is a growingrecognition that these violationsimpinge on a range of rights

guaranteed under Philippine laws,there remains less than fullrecognition of the rights not to be

subjected to the enforceddisappearance and to the wrongfulremoval of children.



• The Disappearances Convention, with itsexpress prohibition of the enforceddisappearance and wrongful removal of

children, represents a promisingresponse to these violations. In providingfor the manner by which these violationsshould be addressed from a legal

perspective, it sets standards by whichgovernment officials should inform theirresponsibilities.



• There is potential for the development ofPhilippine laws, in accordance with theprovisions of this Convention. Beyond a

fundamental review of the relevantdomestic laws, the way forward for thePhilippines would include ratification ofthe Convention and adoption of

legislation enforcing the rightsguaranteed by it.



Sources:

• Philippine Anti-EnforcedDisappearance law, R. A. No. 10353

•

PROTECTING THE CHILDRENOF THE LOST, Ricardo A. SungaIII

•

http://www.karapatan.org• http://www.hrw.org/news/

philippine anti-enforced disappearance (report)

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