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Discussion Guide on the Proposed “Anti-Enforced or Involuntary Disappearance Act of 2007”

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Three-day Seminar-Workshop on Enforced/Involuntary Disappearance

The first bill that sought to criminalize enforced disappearance (then called unexplained disappearance) was filed on September 4, 1990 by Rep. Eduardo Nonato Joson, Jr. It was entitled

“ISANG BATAS NA NAGSUSUSOG SA ARTIKULO 235 NG BINAGONG KODIGO PENAL PARA MAIBILANG ANG IBA PANG KRIMEN SA PANGANGALAGA GAYA NG AGARANG PAGPATAY O SALVAGING AT HINDI MAIPALIWANAG NA PAGKAWALA NG MGA BILANGGO O MGA TAO NA NASA ILALIM NG PANGANGALAGA O INTEROGASYON NG MGA OPISYAL NG BAYAN, BILANG MGA KARUMALDUMAL NA KRIMEN, PAGPAPATAW NG PARUSANG KAMATAYAN DAHIL DOON AT PARA SA MGA IBA PANG MGA LAYUNIN (AN ACT AMENDING ARTICLE 235 OF THE REVISED PENAL CODE SO AS TO INCLUDE OTHER COSTUDIAL CRIMES SUCH AS SALVAGING OR SUMMARY EXECUTION, UNEXPLAINED DISAPPEARANCES OF PRISONERS OR PERSONS UNDER INVESTIGATION OR CUSTODY OF PUBLIC OFFICERS AS HEINOUS CRIMES PROVIDING PENALTY THEREFOR, AND FOR OTHER PURPOSES).

Other bills penalizing enforced disappearance were filed in the following Congresses. The House of Representatives in the 13th Congress approved the Anti-Disappearance bill on 3rd and final reading on May 29, 2006 and transmitted it to and received by the Senate on May 31, 2006. Lamentably, the Senate failed to act on it and its own counterpart versions of the measure.

Rationale

Why do we need an anti-enforced or involuntary disappearance law?

  1. The commission of enforced disappearances has been unabated. From the Marcos regime to the present Gloria Macapagal-Arroyo administration a total of 2,023 victims have been reported, 202 of whom became desaparecidos under the incumbency of President Arroyo. The Families of Victims of Involuntary Disappearance (FIND) has documented 155 of these, and found out that 56 are still missing, 82 surfaced alive and 17 were found dead. It is believed that those who are unreported could constitute a considerable number. House Bill Number 326 or the “Anti-Enforced or Involuntary Disappearance Act of 2007” aims to break the impunity of perpetrators of this heinous offense.
  2. Enforced disappearance is an odious offense which must be punished. The harm inflicted on both the disappeared and his/her family, the anxiety over the uncertain fate of the missing could be immeasurable and intolerable. The act is an affront on the dignity of both the victim and the offender and a serious threat to the moral fabric of society as a whole.
  3. As an act of depriving a person of his/her liberty it is distinct from kidnapping, illegal detention, or even arbitrary detention, and murder which is presumed to accompany most cases of disappearances. The act of enforced disappearance must therefore be clearly defined and penalized accordingly.
  4. The proposed law does not only seek to impose penalties, but more importantly it also aims to institute preventive measures.
  5. Despite providing penal sanctions, the proposed legislation is not punitive. It is rehabilitative and works toward justice that would restore the dignity of both the victim and the offender and mend broken relationships not only between them but between the offender and the community and/or the society as a whole.
  6. The proposed law is consistent with constitutional guarantees on human rights and civil liberties.
  7. The bill upholds the rule of law that seeks to protect the individual from arbitrary exercise of authority of public officers.

Let us now take a look at the specific provisions of House Bill No. 326 that would translate the noble intentions of the bill into concrete protection of liberty and the rule of law.

Definition of Enforced or Involuntary Disappearance

Let us first examine the definition of enforced or involuntary disappearance. There are two similar but not identical definitions. One under the Rome Statute and the other under the United Nation’s Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance and the International Convention on the Protection of All Persons from Enforced Disappearance.

The Rome Statute defines enforced disappearance as “the arrest, detention or abduction of persons by or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”

The definition under the Declaration is closely similar to that under the Convention which considers enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

Both definitions have basically the same essential elements:

  • Deprivation of liberty
  • Directly or indirectly perpetrated by the State
  • Denial of custody and concealment of the fate and whereabouts of the disappeared
  • Disappeared placed outside the protection of the law

Where lies the difference? The major difference is in the inclusion of “a political organization” as perpetrator under the Rome Statute. This would effectively apply to non-State actors.

We opted to adopt the Convention’s definition that limits the commission of enforced disappearance to or with the imprimatur of persons with authority. As we all know, in the United Nations system, the members are States. The commitment to uphold human rights, specifically to protect persons from enforced disappearance comes from State Parties to international instruments (not from political organizations some of which may be operating outside the law). Moreover, it is tacitly understood that it is the duty of the State to ensure respect for human rights by its citizens, or to enforce domestic laws that uphold human rights and civil liberties. This means that the State is accountable for its failure to protect its citizens from lawless elements that violate the citizens’ rights and/or deprive them of liberty. Hence, the criminalization of kidnapping, abduction, illegal detention, and other forms of deprivation of liberty.

Difference from Kidnapping

With the bill’s adoption of the Convention’s definition, enforced disappearance becomes a distinct crime that is separate from kidnapping. Enforced disappearance is deprivation of liberty (may I reiterate) that is committed by State authorities such as the military or the police or indirectly by private individuals or groups or non-State actors but with the authorization, consent, support or acquiescence of public officers. Those who commit enforced disappearance deny custody of the victim or conceal his/her fate or whereabouts so as not to be held accountable. On the other hand, kidnappers own up to the act more particularly when they demand ransom. Those responsible for enforced disappearance are not punished. There is no law yet that defines and penalizes enforced disappearance unlike kidnapping which is already punishable under the Revised Penal Code.

In the absence of a special law criminalizing enforced disappearance, complaints filed against its perpetrators are lodged as kidnapping, murder and/or illegal detention.

Continuing Offense

House Bill No. 326 considers enforced disappearance as a continuing offense as long as the perpetrators continue to conceal the fate and whereabouts of the disappeared person and such have not been determined with certainty. As a continuing offense, enforced disappearance is not committed and consummated in the past or prior to the enactment of the law penalizing it. Thus, the Anti-Enforced or Involuntary Disappearance Act cannot be considered as an ex post facto law.

The bill further provides that the prosecution of persons responsible for enforced or involuntary disappearance shall not prescribe unless the victim surfaces alive, in which case, the prescriptive period shall be 25 years starting from the date of his/her reappearance.

Definition of Victim

Aside from clearly defining enforced disappearance as a State perpetrated offense, the bill also defines who is considered a victim of enforced disappearance. For purposes of the proposed Act, “victim” refers to the disappeared person and any individual who has suffered harm as a direct result of an enforced or involuntary disappearance. Verily, should this bill become a law, a victim may refer to either the disappeared or his/her relative. Let us bear in mind that a mother looking for her missing son may suffer greater pain and anxiety than the son himself. She may not be physically tortured, but the thought of her son being tortured is more excruciatingly painful than if she were herself beaten up.

Nonderogability of the Right against Enforced Disappearance

The uncertainty of the fate of the disappeared is already torturous. Considering that enforced disappearance violates practically all fundamental human rights (including, the right to liberty and security of person, the right not to be subjected to torture, the right to due process of law, the right to be presumed innocent, social and economic rights, such as the right to work, the right of a family to be accorded protection, the rights of children, and in most cases the right to life), the right not to be subjected to enforced disappearance must be nonderogable. The bill provides that this right and the fundamental safeguards for its prevention shall not be suspended under any circumstance including political instability, threat of war, state of war, or other public emergencies.

Liability of Commanding Officer

Consistent with the principle of command responsibility, the bill holds the immediate commanding officer or superior or the equivalent senior official of the offender who has the power, opportunity or authority to prevent or uncover the act of enforced disappearance but failed to avert, discontinue or uncover such act whether deliberately or due to negligence shall be held liable. (penalty-reclusion perpetua)

To ensure that subordinates will not be cowed by higher authorities to take part in the commission of enforced disappearance, the bill declares unlawful an order from a superior officer or a public authority causing the commission of enforced disappearance, and therefore such order cannot be invoked as a justifying circumstance.

Preventive Measures

The bill seeks to institute certain measures that would prevent enforced disappearance, put an end to the concealment of the disappeared person, or secure his or her release from detention.

  1. Guarantees the right of a person under detention to immediately inform his/her family, relatives, lawyer/s or a human rights organization by all means that are available and expeditious (by cellular or landline telephone, letter, courier, electronic mail, telegram, radio or other means) on his/her whereabouts and condition;
  2. Mandates any person, not being a principal, accomplice or accessory who keeps or detains a victim of enforced disappearance or who shall learn or have information of such fact, to immediately report in writing on the circumstances and whereabouts of such victim to the nearest office of the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP), the Department of the Interior and Local Government (DILG), the Department of National Defense (DND), the City or Provincial Public Prosecutor, the Commission on Human Rights of the Philippines (CHRP), as well as the victim’s family, relatives, lawyer/s or to a human rights organization by the most expedient means.
  3. Provides that in case a family member, relative, lawyer, representative of a human rights organization or media inquires with a member or official of any police or military detention center, the PNP or any of its agencies, the AFP or any of its agencies, the National Bureau of Investigation (NBI), or any other agency or instrumentality of the government, as well as any hospital or morgue, on the presence or whereabouts of a reported victim of enforced disappearance, the person being inquired from shall immediately issue a certification in writing on the presence or absence and/or information on the whereabouts of such disappeared person.
  4. Mandates any inquest or investigating public prosecutor, or any judicial or quasi-judicial employee or official who learns that the person delivered for inquest or preliminary investigation or for any judicial process is a victim of enforced disappearance to immediately disclose the victim’s whereabouts to his/her immediate family, relatives, lawyer/s or to a human rights organization by the most expedient means.
  5. Requires that all persons deprived of liberty shall be held solely in officially recognized and controlled places of detention or confinement where an official up-to-date register of such persons shall be maintained. All information contained in the register shall be made available to the relatives, lawyers, judges, official bodies and to all persons who have legitimate interest in the information, which shall include, among others, the following:

    1. The identity of the person deprived of liberty;
    2. The date, time and location where the person was deprived of liberty and the identity of the authority who deprived the person of liberty;
    3. The authority having decided the deprivation of liberty and the reasons for the deprivation of liberty;
    4. The authority controlling the deprivation of liberty;
    5. The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty;
    6. Records of physical, mental and psychological condition of the victim before and after the deprivation of liberty;
    7. In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the human remains; and
    8. The date and time of release or transfer to another place or detention, the destination and the authority responsible for the transfer.

  6. Mandates speedy disposition of habeas corpus proceeding, and any order of release by virtue thereof, or that other appropriate order of a court relative thereto shall be executed or complied with immediately;
  7. Reiterates the Constitutional visitorial power of the Commission on Human Rights by mandating it to conduct independent, regular and/or unannounced and unrestricted visits to or inspection of all places of detention and confinement. (please discuss in relation with writ of amparo)

Penalties

  1. The penalty of reclusion perpetua shall be imposed upon the following persons:

    1. Those who directly committed the act of enforced or involuntary disappearance;
    2. Those who directly forced, instigated, encouraged or induced others to commit the act of enforced or involuntary disappearance;
    3. Those who cooperated in the act of enforced or involuntary disappearance by committing another act without which the act of enforced or involuntary disappearance would not have been carried out;
    4. Those officials who allowed the act of enforced or involuntary disappearance when it is within their power to stop the commission of such act; and
    5. Those who cooperated in the execution of the act of enforced or involuntary disappearance by previous or simultaneous acts.

  2. The penalty of reclusion temporal shall be imposed upon those who attempt to commit the offense of enforced or involuntary disappearance.
  3. The penalty of reclusion temporal shall also be imposed upon the persons who, having knowledge of the act of enforced or involuntary disappearance and without having participated therein, either as principals or accomplices, took part subsequent to its commission in any of the following manner:

    1. By themselves profiting from or assisting the offender to profit from the effects of the act of enforced or involuntary disappearance;
    2. By concealing the act of enforced or involuntary disappearance and/or destroying the effects or instruments thereof in order to prevent its discovery; or
    3. By harboring, concealing or assisting in the escape of the principal/s in the act of enforced or involuntary disappearance, provided the accessory acts are done with the abuse of the official’s public functions.

  4. The penalty of prision correccional shall be imposed against any person who defies, ignores or unduly delays compliance with a habeas corpus proceeding filed on behalf of the victim of enforced or involuntary disappearance or to immediately follow or comply with an order of release by virtue of such habeas corpus proceeding or other appropriate judicial orders.
  5. The penalty of arresto mayor shall be imposed against any person who violates the provisions of Sections 5, 6, 7, 8 and 9 of this Act.

Preventive Suspension

To prevent public officers responsible for enforced disappearance from influencing the investigation and prosecution of the case the bill provides for his/her preventive suspension or prohibits him or her from performing any official duties or be summarily dismissed pursuant to Republic Act 8551, otherwise known as the “Philippine National Police Reform and Reorganization Act of 1998” and other applicable laws, rules and regulations.

Exclusion from Amnesty and Probation

In order not to depreciate the crime of enforced disappearance, persons who have committed enforced disappearance shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. The provisions of Presidential Decree No. 968 otherwise known as the “Probation Law of 1976”, particularly Sec. 4, as amended by the P.D. No. 1990 shall not apply to persons convicted of the crime of enforced disappearance.

It is worth noting that previous amnesty laws, i.e., Proclamation No. 348 (issued on March 25, 1994) as amended by Proclamation No. 377 (issued on May 10, 1994) and Proclamation No. 723 (issued on May 17, 1996) and concurred in by Congress through Concurrent Resolutions Numbered 12-A and 14, respectively excluded torture among other serious human rights violations, from the coverage of such amnesty laws. Hence, it is reasonable for persons who committed enforced disappearance which is torturous to be barred from the benefit of amnesty and similar measures.

Enforced disappearance wreaks incalculable pain and anguish not only on the victims but on their families as well. For this reason, no act of executive clemency should extinguish criminal liability of the perpetrators, more so because these offenders are persons in authority who are sworn to protect and defend the people and their rights and not to violate them.

State Protection

It is extremely difficult to prosecute perpetrators of enforced disappearance because of the absence of witnesses or if there are, they are unwilling to testify before the courts. Thus, the bill mandates the State through its appropriate agencies to ensure the safety of all persons involved in the search, investigation and prosecution of enforced disappearance including the victims, their families, complainants, witnesses, legal counsel and representatives of human rights organizations and media. They shall likewise be protected from any act of intimidation or reprisal as a result of the filing of charges. Any person committing such ill treatment and/or acts of intimidation or reprisal shall be punished under existing laws.

Reparation and Rehabilitation

Reparation is part of serving justice. The victims of enforced or involuntary disappearance who surfaced alive shall be entitled to monetary compensation, rehabilitation and restitution of honor and reputation. Such restitution of honor and reputation shall include immediate expunging or rectification of any derogatory record, information or public declaration/statement on his/her person, personal circumstances, status, and or organizational affiliation by the appropriate government or private agency or agencies concerned.

The next-of-kin of a victim of enforced or involuntary disappearance may also claim for compensation as provided for under Republic Act No. 7309, otherwise known as “An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes”, and other relief programs of the government.

The package of indemnification for both the victims and the next-of-kin shall be without prejudice to other legal remedies that may be available to them.

In order that the nearest-of-kin of victims of enforced or involuntary disappearance and the victims who surfaced alive may be effectively reintegrated into the mainstream of society and in the process of development, the State through the CHRP shall provide them with appropriate medical care and rehabilitation free of charge.

Toward the attainment of restorative justice, a parallel rehabilitation program for persons who have committed enforced or involuntary disappearance shall likewise be implemented without cost to such offenders.

Implementing Rules and Regulations

To ensure that the interest of the victims and their families shall be amply protected, the implementing rules and regulations for the Anti-Enforced or Involuntary Disappearance Act shall be jointly promulgated by the DOJ, the CHRP, FIND and FDJ (Families of Desaparecidos for Justice) in consultation with other human rights organizations. They shall ensure the full dissemination of the IRR to the public.

Oversight Committee

Moreover, the bill creates an oversight committee to periodically oversee the implementation of the “Anti-Enforced or Involuntary Disappearance Act.” The committee shall be headed by a commissioner of the CHRP and with the following as members: one undersecretary of the DOJ, the chairperson of the Senate Committee on Justice and Human Rights, the respective chairpersons of the House of Representatives’ Committees on Justice and Human Rights and the respective chairpersons or secretaries general of FIND and FDJ.

This proposed law reaffirms the principles of State accountability, justice and the rule of law. It is envisioned to help government prevent, suppress, investigate and penalize acts of enforced disappearance as well as provide victims and their families effective machinery for reparation and redress. Ideally, our goal is to make enforced disappearance disappear from the face of the earth.