Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

15™ CONGRESS
First Regular Session

HOUSE BILL NO.__ 2966

Introduced by REP. SALVADOR H. ESCUDERO II

EXPLANATORY NOTE,

This proposed legislation is consistent with one of the fundamental concepts
enshrined in the Bill of Rights that "No person shall be deprived of life, liberty or property
without due process of law”. It seeks to put further into operation Section 11, Article Il of
the Constitution which declares as a State policy the value of human dignity and the
guarantee of full respect to human rights.

Every now and then our society bears witness to cases of involuntary and forced
disappearances. Cases that have placed our country under the tight watch of human rights
groups both local and international, and even foreign governments. Just recently, incidents of
missing persons, famous of which is the Jonas Burgos case, have been reported and
confirmed. And worse it is the military that allegedly effects and perpetrates these
disappearances.

Indeed, any law that seeks to temper State power must be proceeded against with
caution so that State security and protection can likewise be guaranteed.

However, if it becomes apparent that the very existence of humanity is being trampled
upon by the agents of the State in the exercise of its power, there must be no compromise for
a strong legislation with effective corrective penal measures, even if it would mean tilting the
balance much more in favor of individual rights and human dignity.

This bill makes a crime enforced or involuntary disappearance which refers to the
arrest, detention, abduction or any other form of deprivation of liberty committed 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 places such
person outside the protection of the law. It provides as maximum penalty the penalty of
reclusion perpetua, classified as an afflictive penalty equivalent to twenty (20) years and one
(1) day to forty (40) years of imprisonment, without prejudice to civil and administrative
liabilities.

In view of the foregoing, | earnestly request that we work on the immediate passage

of this bill.
Bee
SALVADOR H. ESCUDERO II

Representative
1* District, Sorsogon
' Section 1, Article 111 of the 1987 Constitution.


Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

15™ CONGRESS
First Regular Session

HOUSE BILLNO.__ 2966

Introduced by REP. SALVADOR H. ESCUDERO Ii

AN ACT
DEFINING AND PENALIZING THE CRIME OF ENFORCED OR INVOLUNTARY
DISAPPEARANCE

Be it enacted by the Senate and the House of Representatives of the Philippines in
Congress assembled:

SECTION 1. Short Title. ~ This Act shall be known as the “Enforced or Involuntary
Disappearance Act”.

SEC. 2. Declaration of Policy. - The State values the dignity of every human person
and guarantees full respect for human rights for which highest priority shall be given to the
enactment of measures for the enhancement of the right of all people to human dignity, the
prohibition against secret detention places, solitary, incommunicado, or other similar forms of
detention, the provision for penal and civil sanctions for such violations, and compensation

and rehabilitation for the victims and their famil

s, particularly with respect to the use of
torture, force, violence, threat, intimidation or any other means which vitiate the free will of
persons abducted, arrested, detained, disappeared or otherwise removed form the effective
protection of the law.

Furthermore, the State adheres to the principles and standards on the absolute

condemnation on human rights set by the 1987 Philippine Constitution and various
international instruments such as but not limited to the International Covenant on Civil and
Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (CAT), to which the Philippine is a State party.

' Section 1,, Article 111 of the 1987 Constitution.


SEC. 3. Definitions. — For purposes of this Act, the following terms shall mean:

(1) “Enforced or involuntary disappearance” refers to the arrest, detention,
abduction or any other form of deprivation of liberty committed 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 places such
person outside the protection of the law.

(2) “Victim” refers to the disappeared person and any individual who has
suffered harm as a direct result of an enforced or involuntary
disappearance as defined above.

SEC. 4. Permanent Prohibition of Enforced or Involuntary Disappearance. — The
prohibition of enforced or involuntary disappearance and the fundamental safeguards for its
prevention shall not be suspended under any circumstances including political instability,
threat of war, state of war or other public emergencies.

SEC. 5. “Order of Battle” Not Legal Ground for Enforced or Involuntary
Disappearance. ~ An “Order of Battle”, official or otherwise, issued by the military, police or
any other law enforcement agencies of government, shall not justify or be made an exemption
from an enforced or involuntary disappearance as defined and penalized in this Act.

SEC. 6. Right of a Victim. ~ It shall be the absolute right of a victim of enforced or
involuntary disappearance to have immediate access to any form of communication available
in order for him/her to inform his/her family, relative, friend, lawyer or any human rights
organization on his/her whereabouts and condition.

SEC. 7. Duty to Report Victims of Enforced or Involuntary Disappearance. - Any
person, not being a principal, accomplice or accessory, who keeps a victim of enforced or
involuntary disappearance or who shall learn or have information of such fact or that a person

is a victim of enforced or involuntary disappearance, shall immediately report in writing the
‘Section 1, Article 111 of the 1987 Constitution.


circumstances and whereabouts of the victim to any office, detachment or division of the
Philippine National Police (PNP), the Armed Forces of the Philippines (AFP), the
Department of National Defense (DND), the City or Provincial Prosecutor, the Commission
on Human Rights (CHR) or any human rights organization and, if known, the victim’s
family, relative, or lawyer.

SEC. 8. Duty to Certify an Inquiry into a Possible Victim's Whereabouts. ~ In case a
family member, relative, friend or lawyer of a possible victim, or human rights organization
or member of the media inguires into a possible case of enforced or involuntary
disappearance, specifically the supposed victim’s whereabouts, with the PNP, AFP, NBI, or
similar agencies of government, hospitals, morgues, the officer or personnel concerned shalll
issue a corresponding certification on such inquiry, stating among others in clear and
unequivocal manner the date and time of inquiry, details of the inquiry and the response to
the inquiry.

SEC. 9. Official Up-to-Date Register of All Persons Detained or Confined. - All
persons to be detained or confined pursuant to existing laws and rules and regulations shalll be
placed solely in officially recognized and controlled places of detention or confinement
where an official up-to-date register of such persons shall be maintained.

Within forty-eight (48) hours from the time of arrest, the following details, among
others, shall be recorded in the register:

(@) The identity of the person deprived of liberty or arrested;

(b) The date, time and location where the person was arrested and the identity
of the arresting authority;

(©) The ground or legal basis for the deprivation of liberty or arrest;

(d) The agency of government having control over the deprivation of liberty
or arrest;

(©) The place of detention or confinement and the date and time of admission

to such place of detention or confinement;
' Section 1, Article 111 of the 1987 Constitution.


(8) Records of physical, mental and psychological condition of the person
detained or confined before and after detention or ‘confinement;

(g) In the event of death during detention or confinement, the circumstances
and cause of death and the destination of the human remains;

(h) In the event of a release or transfer, the date and time of release or transfer

responsible for the transfer.

Alll information contained in the register shall be regularly or upon request reported to
the CHR or any other agencies of government tasked to monitor and protect human rights and
shall be made available to the public.

SEC. 10. Submission of list of Government Detention Facilities. ~ 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 an updated inventory or list of all officially
recognized and controlled detention or confinement facilities, and the list of detainees or
persons deprived of liberty under their respective jurisdictions to the CHR.

SEC. 11. Immediate Issuance and Compliance of the Writs of Habeas Corpus and
Amparo. ~ All proceedings pertaining to the issuance of the writs of habeas corpus and
amparo shall be dispensed with expeditiously. As such, all courts and other concerned
agencies of government shall give priority to such proceedings.

Moreover, any order issued or promulgated pursuant to such writs or their respective
proceedings shall be executed and complied with immediately.

SEC. 12. Visitation/Inspection of Places of Detention and Confinement. ~The CHR
or its duly authorized representative are hereby mandated and authorized to conduct regular,
independent, unannounced and unrestricted visits to or inspection of all places of detention
and confinement.

SEC. 13. Liability of Commanding Officer or Superior. - The immediate

commanding officer or superior or the equivalent senior official of the offender who has the
' Section 1, Article 111 of the 1987 Constitution.


power, prerogative or authority to prevent or uncover a crime of enforced or involuntary
disappearance but fails to do so, deliberately or negligently, shall be held liable under the
principle of command responsibility.

SEC. 14. Penal Provisions. - (a) 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 consummated;

(4) Those officials who allowed the act or abetted in the consummation of enforced
or involuntary disappearance when it is within their power to stop or uncover the
‘commission thereof; and

(5) Those who cooperated in the execution of the act of enforced or involuntary
disappearance by previous or simultaneous acts.

(b) The penalty of reclusion temporal shall be imposed upon those who shall commit the
act of enforced or involuntary disappearance in the attempted stage as provided for and
defined under Article 6 of the Revised Penal Code.

(©) The penalty of reclusion temporal shall also be imposed upon 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;

' Section 1, Article 117 of the 1987 Constitution.


(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

(G) By harboring, concealing or assisting in the escape of the principal/s in the

act of enforced or involuntary disappearance, provided such accessory acts
are done with the abuse of official functions.

(d) The penalty of prision correccional shall be imposed against persons who defy,
ignore or unduly delay compliance with any order duly issued or promulgated pursuant to the
writs of habeas corpus or amparo or their respective proceedings.

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

SEC. 15. Preventive Suspension. - Government officials and personne! who are found
to be perpetrators of or participants in any manner in the commission of enforced or
involuntary disappearance as a result of a preliminary investigation conducted for that
purpose shall be preventively suspended or summarily dismissed from the service, depending
on the strength of the evidence so presented and gathered in the said preliminary investigation
or as may be recommended by the investigating authority.

SEC. 16. Civil Liability. - The Act of enforced or involuntary disappearance shall
render its perpetrators and the State agencies which organized, acquiesced in or tolerated such
disappearance liable under civil law

SEC. 17. Prosecution of the Offense. — In the event the prosecution fails to prove all
the elements of enforced or involuntary disappearance and the victim appears, the act shall be
made punishable as kidnapping under the Revised Penal Code. If the victim, however, is
found dead or his/her disappearance persists for over three years, the act of enforced ot
involuntary disappearance in either case shall be made punishable as murder under the

Revised Penal Code.

" Section 1, Article 117 of the 1987 Constitution.


SEC. 18. Independent Liability. — 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 any violation of Republic Act No. 7438, otherwise known as “An Act Defining
Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the
Duties of the Arresting, Detaining, and Investigating Officers, and Providing Penalties for
Violations Thereof”.

SEC. 19. Nonexclusivity or Double Jeopardy Under International Law. -Any
investigation, trial and decision in any Philippine court, or body for any violation of this Act
shall be without prejudice to any investigation, trial, decision or any other legal or
administrative process before any appropriate international court or agency under applicable
international human rights and humanitarian law.

SEC. 20. Unlawful Order. — An order form a superior officer or a public authority
causing the commission of enforced or involuntary disappearance is unlawful and cannot be
invoked as a justifying circumstance.

SEC. 21. Incentives. — Any offender who volunteers information that leads to the
discovery of the victim of enforced or involuntary disappearance shall be immune from any
criminal liability under this Act, provided that the said offender appears to be not the most
guilty.

SEC. 22. Continuing Offense. — An act constituting enforced or involuntary
disappearance shall be considered as a continuing offense as long as the perpetrators continue
to conceal the fate and whereabouts of the victim, and the victim has not reappeared.

SEC. 23. Statute of Limitation Exemption. — 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 twenty-five (25) years from the date of such
reappearance.

SEC. 24. Special Amnesty Law Exclusion. — Persons who are guilty of the act of

enforced or involuntary disappearance shall not benefit from any special amnesty law or
’ Section 1, Article 111 of the 1987 Constitution.


other similar executive measures that shall exempt them from any penal proceedings or
sanctions.

SEC. 25. State Protection. ~ The State through its appropriate agencies shall ensure
the safety of all persons involved in the search, investigation and prosecution of enforced or
involuntary disappearance. They shall likewise be protected from any form of intimidation or
reprisal

SEC. 26. Compensation/Rehabilitation of Victims and Restitution of Honor and
Reputation. ~ The victims of enforced or involuntary disappearance shall be entitled to
monetary compensation, medical and psychological 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
personal circumstances, status, person or affiliation by the appropriate agencies of
government.

A relative of a victim of enforced or involuntary disappearance within the fourth civil
degree of consanguinity or affinity, 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.

Any package of indemnification for both the victim and his/her relative as defined
above shall be without prejudice to other legal remedies that may be available to them under
existing laws.

SEC. 27. Implementing Rules and Regulations. ~ Within thirty (30) days from the
effectivity of this Act, the Department of Justice (DOJ), the CHR, the Families of Victims of
Involuntary Disappearances (FIND) and the Desaparecidos shall jointly promulgate the rules
and regulations for the effective implementation of this Act and shall ensure the full
dissemination of the same to the public in consultation with human rights organizations such

as but not limited to the Asian Federation Against Enforced or Involuntary Disappearance
" Section 1, Article 117 of the 1987 Constitution.


(AFAD), the KARAPATAN, Task Force Detainees of the Philippines (TFDP) and other
human rights organizations.

SEC. 28. Suppletory Applications. ~ The applicable provisions of the Revised Penal
Code shall have suppletory application insofar as they are consistent with the provisions of
this Act.

SEC. 29. Separability Clause. — If for any reason, any section or provision of this Act
is declared unconstitutional or invalid, such other sections or provisions not affected thereby
shall remain in full force and effect.

SEC. 30. Repealing Clause. - All laws, decrees, executive orders, rules and
regulations and other issuances or parts thereof inconsistent with the provisions of this Act
are hereby repealed, amended or modified accordingly.

SEC. 31. Effectivity. ~ This Act shall take effect fifteen (15) days after its publication
in at least two newspapers of general circulation or the Official Gazette.

Approved,

' Section 1, Article 111 of the 1987 Constitution.