Chapter XV - Enforced Disappearance

1. What are the two elements of the crime of enforced disappearance?

"Enforced disappearance of persons" means 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.1

On 23 December 2010, the International Convention for the Protection of all

Persons from Enforced Disappearances entered into force and with it
the Committee on Enforced Disappearances was established. Like for a number
of other thematic human rights issues, the Committee on Enforced
Disappearances and the Working Group on Enforced or Involuntary
Disappearances coexist side by side and seek to collaborate and coordinate their
activities with a view to strengthen the joint efforts to prevent and eradicate
enforced disappearances.2

According to Republic Act 10353, an enforced disappearance has three (3)

elements:
1. Deprivation of liberty against the will of the person;
2. Involvement of government officials, at least by acquiescence; and
3. Refusal to acknowledge the deprivation of liberty or concealment of the
fate or whereabouts of the disappeared person.

2. In 2012, the Philippines passed a law penalizing the act of Enforced or

Involuntary Disappearance. What is that law? Discuss the salient features
of said law.

The law is Republic Act 10353 or the Anti-Enforced or Involuntary Disappearance

Act of 2012.

Salient Features of the law3

1. What is the Anti-Enforced or Involuntary Disappearance Act of 2012?

1
Article 7(2)(i) of the Rome Statute
2
https://www.ohchr.org/en/issues/disappearances/pages/disappearancesindex.aspx. Last accessed on
May 25, 2020
3
PRIMER ON THE ANTI-ENFORCED OR INVOLUNTARY DISAPPEARANCE ACT OF 2012 (Republic
Act 10353) by Karapatan Alliance for the Advancement of People’s Rights
 The Act defines and penalizes the crime of enforced disappearance. The
Philippine government, through the law, officially recognizes the criminal
nature of enforced disappearance – that it is a crime against persons, and
that the perpetrators should be criminally liable and must be put in jail.
More importantly, the law acknowledges that the said crime can only be
perpetrated by State agents. The law likewise recognizes that it is the
State’s responsibility to provide compensation, restitution and
rehabilitation to victims of enforced disappearances and their families.
2. How has the law defined enforced or involuntary disappearance (EID)?
The law defines enforced or involuntary disappearance as having the
following elements:
a. Arrest, detention, abduction or any other form of deprivation of
liberty;
b. Committed by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the
State; and
c. 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.
The victims of EID refer to those who continue to be missing, those who
have been surfaced alive, and those found dead.
According to Karapatan’s Glossary of Human Rights Violations, a missing
person is considered disappeared if his/her whereabouts remain unknown
for more than seventy-two (72) hours. For purposes of its HRV statistics,
Karapatan reports as victims of EID only those who remain missing.
Those who are eventually surfaced are reported under extrajudicial killing,
illegal detention or arbitrary arrest as the case may be.
Under the law, the crime of enforced or involuntary disappearance is
considered a continuing offense as long as the perpetrators continue to
conceal the whereabouts of the missing person. There is no prescription
period for the prosecution of persons responsible for enforced
disappearance, which means at any time from the date of disappearance
and to the time that the person is under circumstances mentioned above,
charges can be filed against the perpetrators, unless when the victim is
surfaced alive. In which case, the period for prosecution shall be twenty-
five (25) years from the date of such reappearance.
3. Can families of the disappeared file an EID case in the courts if their
disappeared relative was abducted before the effectivity of this law?
 Because the EID is a continuing offense, the victims of enforced
disappearance who remain missing up to the effectivity of the R.A.
10353, their families or persons of interest can file a case of EID in
the courts. Those EID victims who were surfaced alive or found
dead before the effectivity of the law will not be covered by R.A.
10353.

4. What was the law’s definition of “Agents of the State”?

Can paramilitary elements be considered state agents and can they be
criminally liable for the act of EID? Can other armed groups, liberation
armies, or private individuals be liable under R.A. 10353, if they committed
enforced disappearance? The law refers to “Agents of State” as persons
who, by popular election or appointment by authority, take part in the
performance of public functions in the government, or shall perform in the
government or in any of its branches, public duties as an employee, agent
or subordinate official, or any rank or class.
The state agents’ immediate commanding officer in their unit or their
senior official of the Armed Forces of the Philippines (AFP) or Philippine
National Police (PNP) shall also be held liable for the crime as a principal
perpetrator. Also, AFP or PNP officers who have knowledge of incidents
being committed or have been committed within their area of responsibility
but did not take any action before, during and after the commission of the
crime will also be held liable as principals under the law.
Paramilitaries are considered state actors or persons acting in authority of
the state and can be liable for EID, including military officers handling or
supervising them. In the Philippine context, there were several cases of
EID that were perpetrated by paramilitary elements and goons-for-hire
who are known by the local residents to be working with and supported by
the AFP in combat operations and counter-insurgency activities.
Only state agents are liable for enforced disappearance under this law,
emphasizing that the act committed by persons in authority is
incomparably heavier than those committed by civilians or non-state
agents. The State is mandated to utilize all its resources to protect its
citizens against human rights violations, so if State agents themselves
commit the violations, their culpability is great. Non-state actors can be
liable for the crime of “kidnapping” under the Revised Penal Code, but not
for enforced or involuntary disappearance under this Act.

5. What are the rights and remedies of victims and their families under the Act?
 The Act holds the State responsible for the enactment of measures for
the: enhancement of the right of all people to human dignity; the
prohibition against secret detention places, solitary confinement, being
incommunicado, and other forms of deprivation of liberty; provision of
penal and civil sanctions for such violations; and compensation and
rehabilitation for victims and their families.
The following rights are more clearly defined:
a. The right against enforced or involuntary disappearance, and
safeguards for its prevention, which should be protected at all times,
including during times of political instability, threat of war, state of war or
other public emergencies;
b. The right of access to communication of any person deprived of
liberty to inform his/her family, relative, friend, lawyer or any human rights
organization on his/her whereabouts or condition;
c. The right against the use of the “order of battle” or any order of
similar nature to justify enforced or involuntary disappearance. Any person
who receives such an order has the right to disobey it;
d. The right of families of disappeared persons to be accompanied
by the Commission on Human Rights or its authorized representatives to
visit or inspect places of detention;
e. The right of a victim of enforced disappearance and his/her
relatives, who is surfaced alive or those who continue to be disappeared
or are found dead after the passage of the law, to file charges and claim
remedies under the law, including restitution of honor and reputation [i.e.
immediate expunging or rectification of any derogatory record, information
or public declaration/statement on the person etc] and compensation
which will not be less than PhP10,000.00;
f. The right of families of victims of enforced disappearance who
continue to be missing or has been found dead to file claims for
compensation;
g. The right of victims of enforced disappearance who are surfaced
alive and their immediate family, as well as families of EID victims who
remain missing, to access medical care and rehabilitation free of charge.
All the rights enshrined in the 1987 Constitution and all international
instruments to which the Philippines is a State party should be adhered to
and protected by the State.
6. What are the duties of government authorities, individuals and private entities
under the law?
a. They should not use the “order of battle” or any order of similar nature, as a
justification or legal ground for commission of EID;
b. Authorities should respect the right of access to communication of any person
deprived of liberty to his or her family, friends, relatives, lawyer or any human
rights organization on his/her whereabouts;
c. Any 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 NBI or any other agency
of the government, and any hospital or morgue (public or private) should
immediately issue a certification in writing to any family member, relative, lawyer,
representative of a human rights organization or member of media who inquires
about the presence or absence and any information on the whereabouts of a
disappeared person. The attached inquiry form, as approved through the IRR,
should be fully accomplished by the institutions where the inquiry was lodged and
such certifications should be issued within the specified schedule.
d. Any person who has information on a case of EID shall immediately report in
writing the circumstances and whereabouts of the victim.
e. Any inquest or investigating public prosecutor, or any official or employee who
learns that a person delivered for inquest or preliminary investigation is a victim
of EID shall immediately disclose the victim’s whereabouts to his/her family,
relatives, lawyer/s, or to a human rights organization through telephone, SMS, or
electronic mail and other expedient forms and means;
f. Government agencies concerned should maintain an up-to-date register of all
persons detained or confined in officially recognized and controlled places of
detention or confinement and should make the register accessible to family
members, relatives, lawyers, judges, official bodies, the CHR, human rights
organizations and all persons with legitimate interest in the whereabouts and
conditions of the persons deprived of liberty.
The register should be regularly reported to the CHR regional offices within the
first five (5) working days of the month on a bi-monthly basis. Regional re - ports
should be consolidated by the CHR Main Office through its Assistance and
Visitorial Office (AVO), and by any other agency of government tasked to monitor
and protect human rights. The registry should be made available to the public or
those who have legitimate interest.
g. Government agencies concerned should submit an updated inventory or list of
all officially recognized and controlled detention or confinement facilities and list
of detainees, within six months of effectivity of the law and within five (5) days of
every month or as may be requested by the CHR.
h. Courts and other concerned agencies of government should give priority to
and thus expeditiously dispense with all proceedings on the issuance of writs of
habeas corpus, amparo and habeas data. Any order issued according to such
writs should be executed and immediately complied with.
i. The CHR and its authorized representative shall conduct regular, independent,
unannounced and unrestricted visits to or inspections of all places of detention or
confinement.
j. Government agencies shall ensure the safety of all persons involved in the
search, investigation and prosecution of enforced or involuntary disappearance.
k. Government agencies shall provide appropriate medical care and rehabilitation
for victims of EID and their families free of charge.

7. What are the liabilities of government authorities, individuals and private

entities under the law?
a. The immediate commanding officer of a unit of the AFP or senior official of the
PNP and other law enforcement agencies shall be held liable for the crime of
enforced disappearance for acts committed by him/her that have led, assisted,
abetted or allowed, whether directly or indirectly, the commission of the crime by
his/her subordinates.
b. Those who committed the act of enforced disappearance directly, or directly
forced, instigated, encouraged or induced others to commit such act, or
cooperated in the commission of another action which led to the EID, or allowed
the EID or abetted it when it is within their power to stop or uncover the crime, or
cooperated in the execution of the EID through previous or simultaneous actions,
shall be imposed with the penalty of reclusion perpetua or 40 years of
imprisonment.
c. Those who attempted to commit the crime of EID, or who have knowledge of
the act by benefitting from or assisting the perpetrator to benefit from the act, or
concealed the EID and/or destroyed the materials to prevent the discovery of the
act, or who harbored, concealed or assisted in the escape of the principals in the
EID, shall be imposed with the penalty of reclusion temporal or 12-20 years of
imprisonment and accessory penalties
d. Those who defy, ignore and delay compliance with any promulgated writs or
orders shall be imposed with the penalty of prision correctional or 6 months to 6
years of imprisonment
e. Those who violate the stated duties of government authorities, individuals and
private entities shall be imposed with the penalty of arresto mayor or 1-6 months
of imprisonment
f. Preventive suspension or summary dismissal of government officials and
personnel who are found to be perpetrators of or participants in the commission
of EID as a result of the preliminary investigation.