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“Right now, there is this culture of impunity covering

executive officials, that they can do whatever they

want and they will not be held accountable.”
-Senator Rodolfo Biazon

ABSTRACT

The Philippines has seen numerous cases of enforced disappearances or
Desaparecidos. However, justice still evades the families of the disappeared.
For them, being a Desaparecido is a fate worse than death. The family is
forever left in a state of limbo—not knowing the fate of their husband, father,
child, or brother.

Although there are provisions and legal developments which aim to
address Enforced Disappearances such as the Writ of Habeas Corpus, Writ of
Amparo, and Republic Act 10353 or the Desaparecidos Law, these fail to
address the issues of resurfacing, accountability, and impunity.

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I.

INTRODUCTION AND BACKGROUND OF THE STUDY

INTRODUCTION

Desaparecidos. Once a mere translation for “disappeared” has
transformed into a political issue. It now gives the victims of enforced
disappearances a special status in the realm of human rights.

The official and legal term is “enforced disappearance”. The term is
intimidating but essentially it means that people are made to disappear
against their will by State officials or their agents.

However, the effects are not a simple as they may seem. The victims are
not limited to the ones actually abducted. In addition, the families are left in
limbo, not knowing the fate of their family member. Furthermore, the
community and society as a whole are affected as the prevalence of enforced
disappearances brings a culture of fear to speak against the government.

The

past

four

decades

witnessed

the

prevalence

of

enforced

disappearances, summary executions, state-sponsored militarism, and other

2

forms of human rights violations which were most rampant during the Martial
Law era.1. Most of the victims are activists, students, journalists, civil society
leaders, trade unionists, land reform advocates, and human rights defenders. 2
Statistics provided by the United Nations 3, while fairly representative, do not
accurately present the actual number of victims. As a defense, the
government portrays the victims as members of the Communist Party of the
Philippines and its armed wing, the New People’s Army (“CPP-NPA”). The
CPP-NPA aims to revolutionize the semi-feudal, neo-colonial society of the
Philippines through armed struggle. It has existed for more than half a century
in continuous warfare with the military. It is terrifying to note that while not all
leftists are members of the CPP-NPA, it has become somewhat a license to
subject activists to state-sponsored terrorism. The Government also blamed
the disappearances on an ongoing “purge” within the CPP itself. 4 However,
studies such as the Melo Commission Report show that this is a vain attempt
to diffuse accountability on the part of the Government as the contention
presented is not supported by evidence. 5
1

New York Times, Philippine Law Forbids Abductions by Military, 23 December 2012
Human Rights Watch, Scared Silent: Impunity for Extrajudicial Killings in the Philippines, 28
June 2007, Volume 19, No. 9(C)
3
United Nations Human Rights Council, Report of the Working Group on Enforced or
Involuntary Disappearances, 10 August 2015
4
UN Human Rights Council, “Note verbale dated 30 May 2008 from the Permanent
Representative of the Philippines addressed to the President of the Human Rights Council”, 2
June 2008
2

5

Jose A.R. Melo, et.al, Report of the Independent Commission to Address Media and Activist
Killings, 22 January 2007
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SIGNIFICANCE OF THE STUDY

This study aims to empower the Desaparecidos and their families through
recognition of the suffering and the injustice they experience. Furthermore,
this study aims to provide accountability and liability on the part of government
officers who have caused the enforced disappearance of the Desaparecidos.
Ultimately, this study aims to help end the culture of impunity and help return
the trust and confidence in the Philippine justice system.

STATEMENT OF THE PROBLEM

Filipinos are proud of their democracy. Triumphs such as the EDSA
Revolution are celebrated. However, the Filipinos fail to see and recognize the
other side of the coin. It is submitted that there is no genuine democracy in
the country. While citizens may have the “freedom” to speak and question the
government, there is always that present and real fear that one day you will
either be dead or missing. Sadly, the end of Martial Law was not the end of
political persecution in the country. Even worse, this reality is rarely
recognized by the majority. The problem brought about by enforced
disappearances is not limited to the actual, physical disappearance. Enforced

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disappearances spread fear and terror among the people, 6 serving as a
warning against speaking against the government. In essence, it produces an
evil which deprives the public from fully exercising certain political rights.

HYPOTHESIS

Presently, the remedies available are the Writ of Habeas Corpus, Writ of
Amparo, and R.A. 10353 or the Desaparecidos Law. However, these are
insufficient. Although the State has aimed to provide protection through laws
and writs, the protection afforded remains to be insufficient as the State has
not been able to decrease the number of enforced disappearances.

It is submitted that as an additional measure of protection, the State
should ratify the International Convention for the Protection of All Persons
from Enforced Disappearance.7

In addition, R.A. 10353 or the Desaparecidos Law must be amended so
as to further strengthen the cause of the Desaparecidos and to provide stricter

6

UN Office of the United Nations High Commissioner for Human Rights (OHCHR), Fact
Sheet No. 6, Rev.3, Enforced or Involuntary Disappearances, July 2009
7
UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, 20 December 2006
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6 . and the International Convention for the Protection of All Persons from Enforced Disappearance. Laws. Republic Act No.  SCOPE AND LIMITATION This study will discuss cases of Desaparecidos in the Philippines and abroad. However. international conventions. the focus of the study will be the Writ of Amparo.penalties for those who violate the law. 10353 or the “Anti-Enforced or Involuntary Disappearance Act of 2012”. and treaties will also be analyzed as to their effectiveness in their respective jurisdiction.

detained. or abducted against their will or otherwise deprived of their will or otherwise deprived of their liberty by officials of different branches or levels of Government.treaties.un. support or acquiescence of the State. 20 December 2006 9 www. followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person. abduction. the Philippines is not a party to this convention. direct or indirect.org/pages/viewdetails. followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty.aspx?src=treaty&mtdsg_no=iv16&chapter=4&lang=en 7 . ENFORCED DISAPPEARANCES According to the International Convention for the Protection of All Persons from Enforced Disappearance. or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization. or with the support. 8 UN General Assembly.II. consent or acquiescence of the Government. Enforced Disappearance is “The arrest. detention. which place such a person outside the protection of the law.” 8 However. 9 Enforced Disappearance occurs when persons are arrested. International Convention for the Protection of All Persons from Enforced Disappearance. or by organized groups or private individuals acting on behalf of.

Declaration on the Protection of All Persons from Enforced Disappearance. there are 759 cases of enforced disappearances during the Marcos administration. Disappearances. and other South American 10 UN Commission on Human Rights. a missing person is considered disappeared if his/her whereabouts remain unknown for more than 72 hours. 2015 12 KARAPATAN (Alliance for the Advancement of People’s Rights). January-March 2015. right not to be subjected to torture. KARAPATAN MONITOR. 26 during Joseph Estrada's. 2011 13 AMNESTY INTERNATIONAL. 11 According to Karapatan. 821 during that of Cory Aquino's. each disappearance violates a wide set of rights such as the right to security and dignity of a person. right to fair trial.which places such persons outside the protection of the law. a human rights organization in the country. 28 February 1992 11 KARAPATAN (Alliance for the Advancement of People’s Rights).amnesty. 39 during Fidel Ramos'.org 8 . and right to life.10 According to Karapatan (Alliance for the Advancement of People’s Rights. 12 According to Amnesty International. 206 during Gloria Arroyo's. 13  Enforced Disappearances in the World During the dictatorships in Chile. Glossary of Human Rights Violations. www. and 26 during the current term of Benigno Aquino III. Argentina.

Working Group on Enforced or Involuntary Disappearances. Death Flight Tale Rekindles Memories of ‘Dirty War’: Argentina: Ex-officer describes throwing leftists out of planes into sea. Mission to El Salvador (Report). William.000 persons may have been abducted. According to Jose Pepe Zalquett. 1995 17 The Vanished Gallery. a number of activists went missing. There were around 1. Jose. The Emergence of “Disappearances” as a Normative Issue. October 2010 15 Process of National Reorganization in Argentina from 1974 to 1983 16 Long.com/vanished 18 UN Human Rights Council. the term Disappearance sprung when he and other members of the Peace Committee noticed that a number of the prisoners they represented had stopped communicating with them.18 An estimated 5.300 cases of systematic disappearance in Chile from 19731977. March 13. 2007 9 .countries in 1960’s-1980’s. the Dirty War15 led to the abduction and illegal detention of political activists. became the symbol of the Disappeared. 14 Zalquett. It was during this time that the term “Desaparecido” was born. In El Salvador. involuntary 16 The term Desaparecidos then 17 disappearances were carried out systematically during the Salvadoran Civil War.000 to 8. Los Angeles Times. Those who were abducted were brought on airplanes only to be thrown out over the Atlantic Ocean. October 26. Thousands believed victims of this policy.14 In Argentina. www. in Human Rights: From Practice to Policy.yendor.

there is an estimated 89 cases of enforced disappearances from 1980 to 2014. Sri Lanka has the second highest number of disappeared. June 7.19 In Thailand. 20 Human rights lawyer Somchai Neelapaijit was abducted in 2004. Responsibility for Enforced Disappearances in the “War of Terror”. Of the countries mentioned above. In Sri Lanka. second only to Iraq. SRI LANKA: Registers on entry and leaving of internally displaced persons needs to be created urgently to prevent forced disappearances.21 The United States has also committed involuntary disappearances. “Op-ed: Thailand’s empty promises on enforced disappearances.S. 2015 21 Ibid. USA: Off the record. 2007 10 . June 15.000 people disappeared. 101 countries have 19 Asian Human Rights Commission. 22 Enforced disappearance is a predicament which has plagued the global community for decades. and Thailand ratified the convention. 22 Amnesty International. at least 39 detainees are believed to be held in secret detention sites by the United States. U. According to Amnesty International. it is reported that 12. Argentina. Because his body was never found. the police never conducted a murder investigation. 2009 20 International Federation for Human Rights. only Chile.According to the United Nations. August 30. Presently.

support.org/thailand-strengthen-efforts-to-solve-theapparent-enforced-disappearance-of-billy/ 25 UN General Assembly. The International Court of Justice (ICJ) has called upon Thailand’s Department of Special Investigation to conduct proper investigations regarding the disappearance. a State or a political organization. Rome Statute of the International Criminal Court (last amended 2010). Thailand has already signed the International Convention for the Protection of All Persons from Enforced Disappearance in January 9.icj.either signed. “Thailand: strengthen efforts to solve the apparent enforced disappearance of “Billy””. or with the authorization.25 It further defines Enforced Disappearance as the arrest. 17 July 1998 24 11 . Pholachi “Billy” Rakchongcharoen disappeared in 2014. 24  ENFORCED DISAPPEARANCES AS A CRIME AGAINST HUMANITY The Rome Statute of the International Criminal Court categorizes Enforced Disappearance as a crime against humanity. 23 Another activist. or acquiescence of. Sadly. note 8 International Commission of Jurists. a habeas corpus inquiry and appeal in 2014 and 2015 failed to yield a positive result. or abduction of persons by. http://www. detention. or ratified the treaty. followed by a refusal to acknowledge that deprivation of freedom 23 Supra. 2012 but has yet to ratify the said convention.

with the intention of removing them from the protection of the law.or to give information on the fate or whereabouts of those persons. 12 .26 26 Ibid.

It was in 1974 when the Task Force Detainees of the Philippines (TFDP) began recording the human rights violations perpetrated by the Marcos Administration. Hence. 1972. This number increased three-fold by 1975. the State used enforced disappearances as a tool of repression to silence the critics of the administration. leftists. s. 27 The Martial Law period was a dark and dim period in the history of the Philippines. 2014 28 13 . an estimated 882 persons were reported as victims of abductions and involuntary disappearances.P. 1081”). then-President Ferdinand Marcos declared Martial Law through Presidential Proclamation 1081 (“P. 28 Upon the declaration of Martial Law. Martial Law Still Haunts Victims – FIND. From 27 Presidential Proclamation 1081. 38 persons were reported to have been abducted. There was a strict and intense crackdown on activists.P. and left-leaning individuals and organizations. violence.1972 Human Rights Online Philippines. September 20. The purpose of P. According to Sonny Resuena of Families of Victims of Involuntary Disappearances (FIND).III. 1081 was to suppress lawlessness. and rebellion. MARTIAL LAW On September 21.

30 29 Desaparecidos (Families of the Disappeared for Justice). 14 . at least twenty-three (23) students were abducted. 2012 30 Ibid. 29 They are the following: Name Year of Disappearance Francisco Portem 1974 Nenita Luneta (and daughter) 1975 Carlos San Jose 1975 Bong Balatan 1975 Leticia Jimenez-Ladlad 1976 Adora Faye de Vera 1976 Rolando Fedieris 1976 Flora Coronacion 1976 Emmanuel Alvarez 1976 Emmanuel Yap 1976 Carlos Tayag 1976 Henry Romero 1976 Rizalina Ilagan 1977 Gerry Faustino 1977 Jessica Sales 1977 Modesto Sison 1977 Cristina Catalla 1977 Ramon Jasul 1977 Emmanuel Salvacruz 1977 Salvador Panganiban 1977 Virgilio Silva 1977 Erwin dela Torre 1977 Hermon Lagman 1977 Among them. only Adora Faye de Vera was surfaced by the military. Primer on DesaparecidosPhilippines.1975 to 1977.

15 .She was released by her military captors and later on reunited with her son.

 31 Jonas Burgos Jonas Joseph T. The First Documented Filipino Desaparecido. Beyond Disappearance. 2006 16 . Witnesses claim that he was shouting “Aktibista ako! Aktibista ako!” when he was being dragged out by his abductors. FAMOUS CASES OF DESAPARECIDOS  Charlie Del Rosario Charlie Del Rosario was a professor at the Philippine College of Commerce.IV. Charlie Del Rosario. Estelita. a progressive organization. The security guard took note of the 31 Del Rosario. He was never heard from again. 1971. He is believed to have been liquidated after his abduction. Burgos is a farmer advocate and a member of Kilusang Magbubukid sa Bulacan was abducted by a group comprised of four (4) men and one (1) woman from Hapag Kainan Restaurant in Ever Gotesco Mall. now called Polytechnic University of the Philippines. It was reported that on March 19. Chronicles of Courage. He was a member of the Kabataang Makabayan. he was abducted by the Philippine Government Unit Task Force while he was putting up posters for the National Congress of the Movement for a Democratic Philippines.

Manuel Merino. he has still not resurfaced and the criminal charges are still pending. overheard their screams and was abducted when he tried to rescue them.  32 Karen Empeno. al. 2010 17 . Macapagal-Arroyo. 2006. Sherlyn.plate number of the maroon Toyota Revo (TAB 194). Despite Petitions for the issuance of a Writ of Amparo and subsequent rulings by the Supreme Court on the accountability of the military. of June 26. et. and Manuel. a farmer.R. A petition for the 32 Burgos vs.M. and Manuel were abducted from a house in Bulacan by armed men. Said plate number was linked to a vehicle which was previously impounded and connected to the 56 th Infantry Batallion. 183711. Karen was a member of the League of Filipino Students while Sherlyn was a member of Anakbayan. Sherlyn. Sherlyn Cadapan and Manuel Merino Karen Empeno and Sherlyn Cadapan are students from the University of the Philippines. G. Karen Empeno was a community organizer for the Alyansang Magbubukid ng Bulakan while Sherlyn Cadapan was researching on the plight of Bulacan farmers. June 22.. Karen. A Petition for the Writ of Habeas Corpus was filed in court which was answered by the military with a denial that they do not know Karen. At 2:00 A.

As to Manuel. 2015. As of September 18.. 2011 18 .R. G.33 In December 2011.. retired Master Sergeant Rizal Hilario. vs. al. Major General Jovito Palparan Jr. armed soldiers went to Raymond’s house looking 33 Boac et. During the hearing on September 16. It must be underscored that the case has been pending since 2011 and accused Palparan was only arrested in 2014. Anotado. the prosecution failed to present witnesses in addition to the witnesses previously presented. May 31.Writ of Amparo was also filed resulting to the order to release Karen and Sherlyn. 2006. The Court is presently hearing the motion for bail filed by the Accused Palparan.al. and Staff Sergeant Edgardo Osorio were charged with two counts of Kidnapping and Serious Illegal Detention. the Court held that the petitioners lacked the legal standing to file the petition. Alexander Tamayo of Malolos RTC Branch 16 granted a final resetting after which the motion shall be deemed submitted for resolution. Hon. Cadapan et. retired Lieutenant Colonel Felipe G. 2015. 14461-62. the case is still pending.  Raymond Manalo and Reynaldo Manalo On February 14.

for a certain “Bestre”. October 7. he was beaten up. They were able to escape from captivity only on August 13. 2007. 2008 19 . Despite denying that he is Bestre. They were asked if they were members of the New People’s Army and each time he denied such.al. Manalo et. Reynaldo.. 34 34 Secretary of National Defense.al. vs. he was abducted and made to ride a van. The two brothers were interrogated and tortured. another person was made to sit beside Raymond who turned out to be his brother. During the car ride.R. A Writ of Amparo was issued in their favor. et. 180906. G.

STATISTICS According to Desaparecidos-Philippines. 39 Karapatan (Alliance for the Advancement of People’s Rights). 39 35 Desaparecidos (Families of the Disappeared for Justice). most of whom came from the Mindanao region.35 During the term of Fidel Ramos. there was an average of one disappearance per week. 68 of these are from the organized sector while 31 were women. 2012. 37 Ibid. vigilante groups acting as military auxiliary groups targeted activists and suspected rebels.38 According to Karapatan. 36 During the presidency of Joseph Estrada. 39 persons were reportedly abducted. during the presidency of Corazon Aquino. 26 persons were reportedly abducted. This was despite peace negotiations with the National Democratic Front. 37 Upon the end of Gloria Macapagal-Arroyo’s term. 2001 to June 30. Primer on DesaparecidosPhilippines. 2010 Year-End Report on the Human Rights Situation in the Philippines. Around 821 persons were reportedly abducted during this administration.V. 2011 20 . 2012 36 Ibid. 38 Ibid. there were 206 cases of enforced disappearances from January 21.

there were 786 cases of enforced disappearances.40 Number of cases of enforced disappearances per year according to the cases transmitted by the Working Group on Enforced or Involuntary Disappearances during the period 1975-2012. note 6 Supra. 19 remain in detention. as of 2015. 108 were freed.41 40 41 Supra. and 29 are dead.According to the United Nations. note 6 21 .

the 1987 Constitution expressly provided for a prohibition of the suspension of the writ other than in cases of invasion. or under restraint.VI. provided that the court order was issued by a court with competent jurisdiction. Rules of Court 22 . The rules provide that the writ of habeas corpus covers cases of illegal detention or confinement or when any person is deprived of his liberty. he must also state the authority under which he has the party in custody. The return shall contain the following a statement whether or not he has the party in his custody or power. he must also state the gravity of sickness or infirmity why he cannot bring such person to court. The writ shall not be issued if the person alleged to be restrained of his liberty is under custody under the power of an official court order. if he has the party in custody and cannot produce him.42 In light of the large number of human rights violations during martial law with the suspension of the writ. rebellion and when public safety so requires. and if he does. REMEDIES  Writ of Habeas Corpus The Writ of Habeas Corpus is governed by Rule 102 of the Rules of Court. and if he had transferred 42 Rule 102.

the party to the custody of another. 45 43 Rule 102.. 17 45 Puno. Reynato S. Chief Justice Puno cited “to prevent losing eye contact with these killings and disappearances. Rules of Court. 10 Rule 102. Rules of Court. 16 July 2007 44 23 . such person shall no longer be imprisoned again for the same offense unless upon proper order of a court with competent jurisdiction. Sec. revive our righteous indignation. and spur our united search for the elusive solution to this pestering problem” as the basis and compelling reason for the development of this writ. Keynote speech on the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances.43 The rule also provides that in case a person was freed pursuant to a valid writ of habeas corpus. Sec. 44  Writ of Amparo Recognizing the insufficiency of the Writ of Habeas Corpus. Chief Justice Reynato Puno declared the legal conception of the Writ of Amparo during the National Summit on Extrajudicial Killings and Enforced Disappearances in 2007. then he must state the authority under which he transferred the party.

or of a private individual or entity. Sec. the right to life. and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. The Rule on the Writ of Amparo provides that the petition is available to any person whose right to life. liberty. 07-9-12-SC. liberty. upon issuance of the writ. No. 1 48 The Rule on the Writ of Amparo.M. Opening Remarks on Lecture Forum on the Rule on the Writ of Amparo The Rule on the Writ of Amparo. 46 The Writ of Amparo is covered by A. name and personal circumstances of the respondent. A. A. or security of the aggrieved party violated or threatened to be violated. 07-9-12-SC. 07-9-12-SC.. liberty. The petition must contain the personal circumstances of the petitioner. Sec. 5 47 24 . No. must file a verified written return which should contain lawful defenses to show that respondent did not violate or threated to violate the aggrieved party’s right to life. investigation conducted. No.M.Chief Justice Puno has proclaimed the writ of Amparo as “the greatest legal weapon to protect the constitutional rights of our people”.47 It further expressly provides that the rule covers extrajudicial killings and enforced disappearances. and the relief prayed for.M. Reynato S. and 46 Puno. actions and recourses taken by the petitioner.48 The respondent.

The Rule on the Writ of Amparo embodies the court’s directive to police agencies to undertake specified courses of action to address the disappearance of an individual. It covers extralegal killings and enforced disappearances as well as threats thereof. recover and preserve evidence related to the death or disappearance of the person. 2009 25 . vs. determine cause. 9 Razon et. 10353: DESAPARECIDOS LAW The Rule on the Writ of Amparo.al. verify and apprehend the persons involved. however. G. No. No. and time of death or disappearance. responsibility and accountability. 49 Literally the writ of “Protection”. December 3. Tagitis. if the respondent is a public official. it determines. it does not allow a military plea of denial which is available in the Writ of Habeas Corpus. identify witnesses and obtain statements. Sec. manner. and bring the suspected officers before a competent court.M.  49 50 R.A.R. he must also state the actions taken or will be taken to verify the identity of the aggrieved party.security. the steps taken by the respondent to determine the fate or whereabouts of the aggrieved party. all relevant information in his possession. 50 Although it does not determine criminal liability. 182498. 07-9-12-SC. A.

51 It is categorized as a crime against persons and a continuing crime. the 51 R. Sec. 10353. Arrest. This implies that victims of enforced disappearances before the enactment of the law but have yet to resurface may still be the subject of the complaint. The law provides no prescription period for the crime except if the victim has resurfaced. b. This law defines and penalizes the crime of enforced disappearance. 3(b) 26 . According to this law. or any other form of deprivation of liberty. detention.The Anti-Enforced or Involuntary Disappearance Act of 2012 was crafted by the families of the desaparecidos and Bayan Muna. It was enacted in 2012 following efforts of advocacy and lobbying for the criminalization of enforced disappearances. However. and c. or acquiescence of the State. The above elements are followed by the refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person. Committed by agents of the State or by persons or groups of persons acting with the authorization. the elements of enforced disappearance are: a. in which case the prescription period is 25 years.A. support. abduction.

Section 14 provides the liability of the Commanding Officer or Superior. 10353. Sec.52 A novel provision in the law strengthens the concept of Command Responsibility. Here. the State is responsible for the enactment of measures for 52 R. In addition. 4 53 27 .A. 53 Section 4 of the Act provides for the non-derogability of the Right Against Enforced or Involuntary Disappearance. 10353. The law defines “Agents of the State” as those who perform a public function in the government. It states that the right against enforced or involuntary disappearance shall not be suspended even during times of political instability. threat of war. officers who have knowledge that the acts were committed within their area of responsibility will also be held liable as principals.A. Victims who were killed are not under the purview of this law. 10353. state of war or other public emergencies. 14 54 R. Sec. 3(a) R.A.54 Under the law. the state agents’ immediate commanding officer in the unit or the senior official of the PNP and AFP shall also be held liable for the crime as a principal perpetrator.law explicitly covers only cases of enforced disappearances. Sec.

if the subject thereof is found to be a victim of enforced disappearance. the PNP. to human rights organizations. AFP. right of victims who have resurfaced to medical care. Upon inquiry. the inquest or public prosecutor or any other officer. prohibition of secret detention places. The Act provides for the penalty of reclusion perpetua for those who 28 . The Act further provides the right to communication of any person detained. NBI. right of the families to visit or inspect detention places. Government authorities are prohibited from using the “order of battle” as a justification for the commission of enforced disappearances. right of the victims to file charges. shall disclose said information to the family of the person detained. right of the families to be compensated. Upon inquest or preliminary investigation. the right against the use of the “order of battle”. or any other government agency is required to issue a certification in writing regarding the presence or absence of a certain person and his whereabouts.the enhancement of the right of all people to human dignity. Government agencies are also required to keep an updated list of all detained or confined persons. solitary confinement and other forms of deprivation of liberty. or the victims lawyer through expedient means.

or induced others to commit such act or cooperated in the commission of another action which led to the enforced disappearance. Lorena P. Those who attempted or concealed the crime or destroyed evidence shall be punished with reclusion temporal. March 17. Desaparecidos Law – a Failure. A notable feature of the law is the exclusion from special amnesty of the persons convicted of committing enforced disappearance.com/2014/03/17/anti-disappearance-law-a-failuredesaparecidos/ 29 . enforced disappearances continue to happen and until now. instigated. 2014 https://desaparesidos. encouraged. Santos of FIND refers to it as a “dog that doesn’t hunt”.committed the act of enforced disappearance directly. After the preliminary investigation. it has failed to decrease enforced disappearances. cases of enforced disappearances still take place.wordpress. Those who violate the stated duties of government authorities shall be punished with arresto mayor. Despite the noble intentions of the law. preventive suspension or summary dismissal may be imposed on government officials and personnel who are found to be the perpetrators.55 Despite the enactment of the law. 55 Desaparecidos Philippines. Those who disobey writs or orders of the court shall be punished with prision correccional. or directly forced. Since its enactment in 2012. no one has been prosecuted under this toothless law.

30 .

Sections 8 and 9 of the said law provides for the duties of Government agents. any person who shall information regarding an enforced disappearance should immediately report the same to the following government agencies/officers: 1. City or Provincial Prosecutor 7. lawyer. Department of National Defense (DND) 3.A. Department of Interior and Local Government (DILG) 2. National Bureau of Investigation (NBI) 6.A.VII. in case a family member. According to Section 8. REMEDIES UNDER R. media 56 R. Victim’s family or lawyer56 More importantly. Philippine National Police (PNP) 4. 10353. 10353  Duties of Government Agents According to R.A. 7 31 . Commission of Human Rights (CHR) 8. 10353. Sec. Armed Forces of the Philippines (AFP) 5. Any human rights organization 9.

National Bureau of Investigation (NBI). to a human rights organization.personnel. 10353. Judicial Officer/Employee. 10353. 9 32 .A. 57 Furthermore. lawyers. Sec. the a member or official of the detention center. or representative of a human rights organization inquires about the presence or absence of a certain person in their custody. Armed Forces of the Philippines (AFP) and its agencies. or morgue is duty-bound to provide a Certification in writing regarding the whereabouts of such person as well as specific details in relation thereto.A. hospital. Sec. R. Section 9 of the said law expressly requires that upon learning that the subject accused in the inquest or preliminary investigation is a victim of an involuntary disappearance. 58  The 57 58 Restitution for victims or their families Anti-Desaparecidos Law and its Implementing Rules and R. Philippine National Police (PNP) or its agencies. the aforementioned officers should immediately disclose his whereabouts to his/her immediate family relatives. 10353 provides the duty of the Inquest/Investigating Public Prosecutor. and Quasi-Judicial Officer/Employee.A. 8 R.

60 The IRR further provides the following forms of restitution: Status 59 60 Who Are Entitled Entitlement Implementing Rules and Regulations (IRR) of Republic Act (R. 27 Ibid 33 .59 The Implementing Rules and Regulations further clarified that the term “victims” as provided in R. rehabilitation. Sec.Regulations provide for restitution for the victims or their immediate relatives.A. According to the Implementing Rules and Regulations of R. 10353. 10353 does not only mean those who surface alive but extends to those who continue to be missing or are subsequently found dead.A.) No. the victims of enforced disappearances who shall later on surface alive shall be entitled to monetary compensation. 10353. and restitution of honor and reputation.A.

Roll of victims of enforced or involuntary disappearance officially issued subsequently by the Government. Records of the National Historical Institute or the Bantayog ng mga Bayani Memorial Center 4. National Prosecution Service Resolution 2. or Court Order 5. the following pieces of evidence will be considered in proving the existence of an enforced disappearance: 1.Resurfaced Victim and relatives within the Monetary fourth degree of consanguinity compensation.61 61 Ibid 34 . Habeas Corpus. rehabilitation. Commission of Human Rights Resolution 3. Habeas Data. restitution of honor and reputation Missing or Dead Family of victim Monetary compensation In order to prove the claim for compensation. Writ of Amparo.

The law punishes the abduction by State Agents of people suspected to be involved in antigovernment activities. and theUnited Nations Declaration on the Protection of all Persons from Enforced Disappearance. the enactment of the Desaparecidos Law of 2012 effectively adopts the Convention’s definition of enforced or involuntary disappearances. Convention on the Rights of the Child. the State shall adhere to the principles and standards set by international human rights instruments such as the United Nations Declaration of Human Rights. Convention on the Elimination of all Forms of Discrimination against Women. International Covenant on Civil and Political Rights.VIII. CRITICAL ANALYSIS OF AVAILABLE REMEDIES Although the Philippines is not a signatory to the International Convention for the Protection of all Persons from Enforced Disappearance. Social. or Degrading Treatment or Punishment. The Philippines is one of the countries notorious for extra-judicial killings and enforced disappearances. International Covenant on Economic. Convention against Torture and other Cruel. The Implementing Rules and Regulations of the said law states that as a matter of public policy. 35 . and Cultural Rights. Inhuman.

the said writs are procedural in nature. there is no jurisprudence yet covering the law. They do not provide for criminal liability and accountability. and other cases of desaparecidos. state agents may be held criminally liable and may be punished up to the most extreme penalty of Reclusion Perpetua. However. Manuel Merino. As in the cases of Jonas Burgos. 10353 steps in and provides for a substantive remedies and liabilities on the part of State Agents. Since the writs are only procedural and not criminal.A. the writs of Habeas Corpus and Amparo proved to be insufficient to surface the victims and enforce liability on the part of the government. However.Since it is a fairly new law. however. Manalo brothers. 36 . Various procedural remedies are available and have been utilized by certain parties. Courts may only order the Commission on Human Rights to conduct investigations and the state agents to answer the complaints and cooperate with the CHR. Sherlyn Cadapan. 10353. this is a product of years of struggle for justice. The Writ of Habeas Corpus and the Writ of Amparo have been availed of in a number of cases of enforced disappearances. Through R.A. Karen Empeno. This is where R.

10353 and its Implementing Rules and Regulations that such Order of Battle is not a ground to validly execute enforced disappearances and any person who receives such order is required to disobey it.In addition. The law must further provide for an environment which is more conducive to reporting such incidents. police. and security such as the right to communication and compensation. 2013 37 . liberty. Furthermore. It is expressly stated by R. The law further recognizes the “Order of Battle” which is any document made by the military. 62 The law further gives substantive rights to persons deprived of their life.A. the law recognizes doctrine of command responsibility by holding commanding officers or superiors liable. February 12. The fear lies with the “little people” being held responsible to the full extent while the masterminds remain scot-free. 10353. the law only provides restitution to victims who resurface 62 R. the law should not be abused as against persons who may be aware of such cases but failed to report it due to fear of reprisal. However.A. or other law enforcement agency which contains a list of the names of persons and organizations perceived to be enemies of the State and who may be considered as combatants instead of civilians. Implementing Rules and Regulations.

one must uphold the rule of law and follow the process and procedures set by law no matter how tedious and timeconsuming they may be. Law enforcement agencies should be reminded that in a democratic state such as ours. who are also noncombatants.but fails to give the same to the benefit of families of victims who remain missing or are later on found dead. 38 . The law further fails to cover extrajudicial killings.

This only makes the exercise of this law futile as government agents and officials can just easily deny or claim lack of knowledge. it does not provide for any penalty for failure to cooperate. The Desaparecidos Law only provides for penalties for state officials who allowed the consummation of enforced disappearance. The root of the problem of enforced disappearances is impunity. Although it is provided in the Implementing Rules and Regulations that “victims” also 39 .  Provide reparation for families of victims who have been judicially declared as disappeared but have not resurfaced. However. or had committed any of the general punishable acts.IX. Sections 26 and 27 of the Desaparecidos Law provides for restitution and compensation to victims and/or their immediate relatives. State officials and agents who commit enforced disappearances take comfort in the idea that their obligation can end with a mere denial. PROPOSED AMENDMENTS  Provide penalties for failure of government officials to cooperate with the search for Desaparecidos.

in addition to the proof required in Sec.A. This may be done through a judicial declaration of the victim as a desaparecido.include those who have not resurfaced. which shall consider. 27 of the IRR. Hence. other evidence which support the allegation of enforced disappearance.  Provide a strict timeline regarding the disposition of cases filed under R. 40 . 10353 Time is of the essence when it comes to enforced disappearances. In order to fully give life to the intent of the law. It should be treated like Habeas Corpus cases which require speedy disposition so as to protect the liberty of the victim. it is not clear as to how it may be sufficiently proven. the law should be amended to provide a strict timeline of disposition of cases. Prolonging the period of disappearance would only allow for further harm to happen to the victim. the family of the victims who have not resurfaced should be entitled to the restitution provided to victims who have resurfaced.

providing guidance and assistance for institution of cases. among others. and other benefits arising from death such as SSS benefits. 41 . for granting of insurance benefits. Hence. It is beneficial for purposes of opening their succession. Provide a mechanism for victims of enforced disappearances to be declared presumptively dead for the purpose of succession. Victims of enforced disappearances who don’t surface are always in a state of limbo.  Provide for the establishment of a governmental body which shall have primary responsibility over supervision of pending cases. it is proposed that the law be amended to include victims of enforced disappearances into a special category which would allow for a faster period within which they can be declared presumptively dead. with their family and relatives not knowing whether their loved one is still alive. most of the disappeared either remain missing for a very long time or do not even resurface at all. and applications for reparation and compensation. By experience.

it is further proposed that a body or organization with the said Commission be established for the purpose of having the primary responsibility over cases of Enforced Disappearances. and coordinate with other State agencies and the general public regarding issues related to enforced disappearances. institutionalizing the celebration of the International Day of the Disappeared. filing of prospective cases. and spreading awareness of enforced disappearances to various sectors of the country. It shall be responsible for establishing memorials. provision of legal assistance to victims or their families. assess applications for reparations and compensation. 42 .In addition to the Commission of Human Rights. It shall be primarily responsible for supervision of pending cases.

64 Hence. 63 This convention categorizes enforced disappearance as a crime against humanity. the United Nations General Assembly approved the Declaration on the Protection of All Persons from Enforced Disappearance. or acquiescence of the State. support. International Convention for the Protection of All Persons from Enforced Disappearance. followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person. detention. International Convention for the Protection of All Persons from Enforced Disappearance. the International Convention for the Protection of All Persons from Enforced Disappearance was only finalized in 2006. Article 2.X. which place such person outside the protection of law. Article 5. RATIFY THE PROTECTION INTERNATIONAL OF ALL CONVENTION PERSONS FROM FOR THE ENFORCED DISAPPEARANCE In 1992. it puts cases of enforced disappearances under the 63 UN General Assembly. or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization. However. 20 December 2006 64 UN General Assembly. 43 . 20 December 2006. The convention defines enforced disappearance as the arrest. abduction.

orders. solicits. or who exercised effective responsibility for or control over activities which were concerned with the crime of enforced disappearance. International Convention for the Protection of All Persons from Enforced Disappearance. 20 December 2006.66 The Convention provides for the establishment of the Committee on Enforced Disappearances.jurisdiction of the International Criminal Court. Article 33. or attempts to commit. The Committee is empowered to visit a State Party alleged to be seriously violating the provisions of the Convention. 67 A representative from the Committee may pay a visit to the State Party and communicate the proper observations and recommendations. 67 UN General Assembly. July 17. 44 . 20 December 2006. or is an accomplice to or participates in an enforced disappearance. Article 6. International Convention for the Protection of All Persons from Enforced Disappearance. Rome Statute of the International Criminal Court (last amended 2010). 65 UN General Assembly. Article 5. or any superior who knew or consciously disregarded information which clearly indicated that his subordinates were committing or about to commit a crime of enforced disappearance. or induces the commission of. or failed to take all necessary and reasonable measures to prevent or repress the commission of an enforced disappearance. 65 The Convention mandates the State Parties to hold criminally liable any person who commits. 1998 66 UN General Assembly.

International Convention for the Protection of All Persons from Enforced Disappearance. the above provisions are probably the reason why the Government has yet to ratify the Convention.68 According to Atty. 69 Bulatlat. 68 UN General Assembly. Ratify UN Convention against enforced disappearances – kin of victims. Edre Olalia. 2014 45 . it will be incumbent for the State Party to allow visits of special rapporteurs in the country.com. it may bring the matter to the attention of the General Assembly of the United Nations. Secretary General of the National Union of People’s Lawyers (NUPL). 69 Upon ratification of the Convention. June 7. 20 December 2006. Article 34.The Convention further provides that if the Committee receives information which appears to contain well-founded indications that enforced disappearance is being practiced on a widespread or systematic basis.

71 With regard to the second requirement. 2.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.a spx#procedureCED (Last accessed on 04 January 2016) 46 .org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications. 70 Furthermore. http://www. The State party must have recognized the competence of the Committee to examine individual complaints. It must be a State party either through ratification or accession. http://www.XI. a complaint against a State may be brought subject to the following requirements: 1. PROCEDURE OF FILING A COMPLAINT UNDER THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE According to the Office of the High Commissioner for Human Rights (OHCHR).ohchr.aspx (Last accessed on 28 December 2015) 71 Office of the High Commissioner for Human Rights. Human Rights Bodies— Complaints Procedures. Human Rights Treaty Bodies —Individual Communications. the Committee on Enforced Disappearances is among some treaty bodies which allow for individual communications alleging violations of the International Convention for the Protection of All Persons From Enforced Disappearances as long as State Parties have made the necessary declaration as provided in Article 31 of the said Convention. according to the OHCHR. the Committee referred to is the 70 Office of the High Commissioner for Human Rights.

Date of Birth 4. Nationality 3. Alleged victim’s name 2. anyone may file the complaint on behalf of another person. Request to not disclose the name of the victim if the situation calls for it 7. Facts on which the complaint is based 8. State to which the complaint is directed 6. Mailing Address 5. even if the consent of the victim has not been acquired.Committee of Enforced Disappearance which is comprised of 10 experts. as long as the above requisites have been met. In the case of enforced disappearances. who are tasked to deliberate on the complaints filed by individuals. the Committee shall communicate the complaint to the State Party which shall then be required to 72 Ibid 47 . meeting biannually. Exhaustion of remedies available in the State Party72 After deciding on the admissibility of the complaint. The complaint must state the following information: 1.

merits. if any. and previous remedies provided. the former shall provide its findings and recommendations. 73 Ibid 48 . If the case is decided against the State Party.73 The Committee shall then decide on the merits of the case.file an answer or written explanations that are related to the admissibility. The latter is given 180 days from the decision to provide information regarding the steps undertaken to implement the recommendations given by the Committee.

Impunity. The International Convention for the Protection of All Persons from Enforced Disappearance should be ratified so as to strengthen the legal framework of the fight against enforced disappearances. This law is an instrument aimed to end impunity. The main challenge is the actual enforcement of the law. Retrieved 17 September 2015 49 . Condemnation of enforced disappearance is not enough. There should be actual enforcement of the law. is one of the main problems in the government and in the Philippine society as a whole. CONCLUSION In a nutshell. The ratification of the International Convention of All Persons from 74 Free Dictionary. the prevalence of enforced disappearances in the country is now legally recognized and has been conceived as an actual criminal act. There should be actual political will to hold perpetrators accountable and criminally liable. Through this law.XII. which is the exemption from punishment or freedom from injurious consequences of an action 74. the Desaparecidos Law of 2012 is a welcome addition to the legal system of the Philippines.

It is a sad reality that the State will most likely avoid prosecution of enforced disappearances.Enforced Disappearance would allow for additional measures to combat impunity. mainly because enforced disappearances are acts of the State itself or its agents. It must be stressed. The International Convention of All Persons from Enforced Disappearance does not intend to be an absolute safeguard against enforced disappearances. an international oversight committee can provide the venue for prosecution when the State refuses. 50 . Hence. prevent recurrence of involuntary disappearances. however. and enforcement of the rights of victims. that the prevalence of enforced disappearance is chiefly caused by impunity. The convention provides for measures to counter impunity such as the State visits which may be undertaken by the Committee.

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