Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FIFTEENTH CONGRESS
First Regular Session

HOUSE BILL NO. 3 _ 804 8

Introduced by Reps. NERI JAVIER COLMENARES, TEDDY A. CASINO,
RAFAEL V. MARIANO, LUZVMINDA C. ILAGAN,
RAYMOND V. PALATINO, EMERENCIANA A. DE JESUS,
ANTONIO L. TINIO and RUFUS B. RODRIGUEZ

EXPLANATORY NOTE

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

The phenomenon of enforced or involuntary disappearance has largely been left
undefined, unchecked and unpunished in our country. No specific offense related to it has
been recognized despite its systematic occurrence for the past 30,years.

‘The Philippines is one of the countries with the highest number of outstanding cases
of involuntary disappearances at present. It was during the Marcos regime when cases of
enforced or involuntary disappearance increased in pattern and scope. ‘The victims of
involuntary disappearance ~ who came to be known as desapareides, following the term used
widely in Latin America — were mostly youth activists critical of the dictatorship. Thousands
of them were arrested and detained in undisclosed places; at least 737 were never to be seen
ot heard from again.

Subsequent administrations after the Marcos regime failed not only to put an end to
this practice, but allowed the abhorrent trend to persist: In the past regime (2001-June 30,
2010), there are at least 206 documented cases of victims of enforced
series of abduction of Jonas Burgos, Ma. Luisa Posa-Dominado. Nilo Arado, $
Cadapan and Karen Empeno, to name a few, underscore the gravity of the problem. ‘Then
and now, the perpetrators have remained unpunished and free to commit the act over and
over.

‘The United Nations recognizes the gravity of the phenomenon and deems it as a
crime against humanity. What particularly distinguishes the crime of enforced or involuntary
disappearance from the ordinary crime of kidnapping is its commission by agents of the


State and private individuals acting with the support, authorization or acquiescence of State
agents not to mention the fact that ordinary kidnapping or serious illegal detention is already
addressed by existing penal laws. ‘The reason for the concern of the United Nations is if the
crime is perpetrated by the very states-parties who formally bound itself under UN treaties
and resolutions to protect its people from enforced disappearance.

For decades now, the phenomenon has been a nameless, undefined incident in
Philippine laws. It is time that it be defined and penalized in the interest of upholding the
most basic rights and principles which define the essence of life, humanity and justice. ‘The
Philippines ratified the International Covenant of Civil and Political Rights which requires,
under Article 2, that the Philippine government and each State Party “undertakes to take the
necessary steps in accordance with its constitutional processes and with the provisions of the
present Covenant, to adopt such legislative or other measures as may be necessary to give
effect to the rights recognized in the present Covenant.”

This bill is the product of the decades-long experience of human rights lawyers,
particularly in handling numerous cases of enforced disappearance. Their rich experience
provide the framework and substance of this measure.

If we are to fulfill our obligations under Article 2 of the ICCPR, the House of
Representatives should work for the immediate approval of this Bill.

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COLMENARE! TEDDY A: CASINO
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RAFAEL V. MARIANO Lu MINDA C. ‘iach

Anakpawis Partylise Gabriela Women’s Party
RAYMOND V. PALATINO EMERENCIANA 4. DE JESUS
Kabataan Pasty Gabriela Women’s Party

ACT Teachers Partylist



Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FIFTEENTH CONGRESS
First Regular Session

3046

HOUSE BILL NO. _

Introduced by Reps. NERI JAVIER COLMENARES, TEDDY A. CASINO,
RAFAEL V. MARIANO, LUZVMINDA C. ILAGAN,
RAYMOND V. PALATINO, EMERENCIANA A. DE JESUS,
ANTONIO L. TINIO and RUFUS B, RODRIGUEZ

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

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

SECTION 1. Short Title. ‘This Act shall be known as the “Anti-Enforced Disappearance
Act of 2010.”

SECTION 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, ot other similar forms
of detention, the provision for penal and civil sanctions for such violations, and
compensation and rehabilitation for the victims and their families, particulatly 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 from
the effective protection of the law.

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

1. Enforced or Involuntary Disappearance is the arrest, detention, abduction or any
other form of deprivation of liberty by agents of the State ot by persons or groups of
persons acting with the authorization, support or acquiescence of the State or its
agents, followed by a refusal to acknowledge the deprivation of liberty ot by
concealment of the fate or whereabouts of the disappeared person, which places
such a person outside the protection of the law.


It is conclusively presumed that a person is removed from the protection of the law
for a period of time of at least thirty-six (36) hours when the other elements or
circumstances of enforced or involuntary disappearance concur.

2. Victim of Enforced or Involuntary Disappearance refers to any individual
against whom the crime of enforced or involuntary disappearance as defined above
has been committed. The family of the victim is recognized as a victim for the harm
they have suffered as a result of enforced disappearance and in so far as they are
accorded the right to compensation, restitution and rehabilitation.

SECTION 4. No Justification. No exceptional circumstances whatsoever, whether a state
of war or a threat of war, internal political instability or any other public emergency, may be
invoked by government or its agents as a justification for enforced disappearance, Enforced
disappearance is a crime under any circumstances.

SECTION 5. Right of Victim of Enforced or Involuntary Disappearance. It shall be
the absolute right of a victim of enforced or involuntary disappearance to immediately
inform his/her family, relative, lawyer/s or 2 human rights organization by all means that are
available and expeditious, by cellular phone, landline, courier, letter, electronic mail,
telegram, radio or other means, on his or her whereabouts and conditio

SECTION 6. Duty of Person/s Keeping, Arresting, or Detaining Victim of Enforced
of Involuntary Disappearance. Any person/s not being a principal, accomplice, or
accessory who keeps of detains a victim of enforced or involuntary disappearance or who
shall learn or have inforination of such fact shall have the duty to immediately report in
writing on the circumstances and whereabouts of such victim to the Commission on Human
Rights (CHR) and the nearest office of the Philippine National Police (PNP), Armed Forces
of the Philippines (AFP), Department of Interior and Local Government (DILG),
Department of National Defense (OND), the City or Provincial Public Prosecutor, as well a8
the victim’s family, relatives, lawyet/s ot to a human tights organization by the most
expedient means.

‘The failure of such person to perform this duty by negligence or otherwise shall subject
him/her to the penalties under Section 11 (ii) hereof.

SECTION 7. Duty of Person/s to Certify in Writing on the Results of Inquiry into a
Possible Victim’s Whereabouts. In case a family member, relative, lawyer/s, human rights
organization or member of the media inquires with a member ot official of any police or
military detention center, the Philippine National Police (PNP) ot any of its agencies, the
“Armed Forces of the Philippines (AFP) ot any of its units or offices, the National Bureau of
Investigation (NBD, ot any other agency or instrumentality of the Government, as well as
any hospital or morgue, public or private, on the presence or whereabouts of a reported
victim of enforced or involuntary disappearance, such member ot official shall immediately
issue a certification in writing to such inquiring person or entity on the presence or absence
and/or information on the whereabouts of such possible victim.

‘The failure of such person to perform this mandatory duty, or the issuance of a false
certificate, shall subject him/her to the penalties under Section 11 (ii) hereof, regardless of


whether or not the said victim tums out to be in their power, authority, control, or custody
at the time of the inquiry.

SECTION 8. Duty of Inquest/Investigating Public Prosecutor or any Judi
Quasi-Judicial Employee or Official. Any Inquest or Investigating Public Prosecutor or
any judicial or quasi-judicial employee or official who learns of such disappearance and upon
whom the victim of enforced or involuntary disappearance is delivered for inquest or
preliminary investigation or for any other judicial process, shall have the duty to immediately
inform such circumstance and the vietim’s whereabouts co the Commission on Human
Rights (CHR) as well as his/her immediate family, relative, or lawyer/s or to a human rights
organization by the most expedient means.

“The failure of such Inquest or Investigating Public Prosecutor ot any judicial or quasi-judicial
employee or official to perform this duty by negligence or otherwise shall subject him/her to
the penalties under Section 11 (ji) hereof.

SECTION 9. Defying, Ignoring, or Unduly Delaying Compliance with a Judicial
Order. ‘The penalties provided for in Section 11 (il) hereof shall be imposed against any
person who defies, ignores, or unduly delays compliance with a habeas corpus or a writ of anparo
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 or writ of
amparo proceeding or other appropriate judicial order.

SECTION 10. Liability of Commanding Officer or Superior. ‘Ihe immediate
commanding officer or any other senior official of those who committed the acts referred to
in Section 11 () who has knowledge or owing to the circumstances at the time should have
known that the crime of enforced disappearance shall be committed, is being committed or
has been committed by his or her subordinates or by others within his area of responsibility
and (ii) he of she failed to take preventive or corrective actions before, during or immediately
after the commission of such crime or fails, whether deliberitely or duc to negligence, or
fails to investigate the same, and submit the matter to corfpetent authorities for their
investigation and prosecution, shall suffer the penalty of reclusion temporal.

SECTION 11. Penalties. ‘The following penalties shall be mete«

() The penaley of seclusion perpetua shall be meted upon the following persons for the
commission of enforced or involuntary disappearance —

a. Those who directly committed the act of enforced or involuntary disappearance;

b. ‘Fhose who directly force, encourage or induce others to commit the act of
involuntary disappearance;

. Those who cooperated in the act of enforced or involuntary disappearance by
another act without which the act of enforced ot involuntary disappearance
would not have been carried out;

d. Those who allowed the act of enforced or involuntary disappearance when it is
within their power to stop the commission of such act;

¢. Those who cooperated in the execution of an act of enforced or involuntary
disappearance by previous or simultaneous acts.



Provided, however, that should the victim surface alive at or before the time of trial, the
penalty next lower in degree shall be imposed.

Gi) The penalty of prision mayor shall be imposed:

2. on those who attempt to commit enforced or involuntary disappearance,
b. on 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,
acts:
b.1 By themselves profiting from or assisting the offender to profit from the
effects of the act of enforced or involuntary disappearance;
b.2 By concealing the act of enforced of involuntary disappearance, and/or
destroying the effects or instruments thereof, in order to prevent its discovery
b.3 By harboring, concealing, or assisting in the escape of the offenders, whether
principals or accomplices, in the act of enforced or involuntary disappearance

Gi) ‘The penalty of prision correccional shall be imposed on persons who commit the
acts described in Section 6, Seetion 7, Section § and Section 9 of this Act.

Provided, that the crime of enforced or involuntary disappearance shall not prescribe
unless the victim surfaces alive, in which case, the prescriptive period shall be
twenty-five (25) yeats starting fom the date of his or her reappearance.

SECTION 12. Liability Under Other National Criminal Laws. ‘The liability of the
offender under this Act shall be independent of, in addition to, or without prejudice to
prosecution and conviction for violation of other applicable laws'including R.A, 7438 (An
Act Defining Certain Rights of Person Arrested, Detained or Yder Custodial Investigation,
as well as Duties of the Arresting, Detaining and Investigating Officers and Providing
Penalties Therefor) as well as the Revised Penal Code, including arbitrary detention, delay in
the delivery of detained persons, delaying release, maltreatment of prisoners, unlawful arrest,
incriminating innocent person, physical injuries, murder and any other appropriate criminal
offense/s in special laws.

SECTION 13, Non-Exclusivity or Double Jeopardy Under International Law.
Notwithstanding the provisions of the foregoing section, any investigation, trial and decision
in any Philippine court or other agency for any violation of this Act shall be without
prejudice to any investigation, trial, decision or any other legal or administrative process
before the appropriate international court or agency under applicable international human
rights and humanitarian law.

SECTION 14. Incentives and Restrictions. Any person who volunteers information that
leads to the discovery of the victim of enforced or involuntary disappearance shall be
immune from a criminal charge under this Act and shall be exempt from criminal
prosecution, provided said offender appears not to be the most guilty of the crime.



‘The perpetrators of enforced or involuntary disappearance shall be suspended and
prohibited from performing any official duties or be the subject of promotion or
reassignment of post during the pendency of the case, whether at the level of investigation,
criminal or administrative, trial and appeal of the case

SECTION 15. Unlawful Order. An order from a superior officer or public authority
causing the commission of enforced disappearance is unlawful and cannot be invoked as a
justifying circumstance. Any person receiving such order shall have the duty to disobey it.

SECTION 16. Protection of Victims, Their Families, Legal Counsel, Human Rights
Organizations, Media and Witnesses of Enforced or Involuntary Disappearance. ‘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 including the
victims, their families, complainants, witnesses, representatives of human rights
organizations, media and legal counsel. They shall likewise be protected ftom any act of
intimidation or reprisal as a result of the filing of charges,

SECTION 16. Compensation to Next-of-Kin of a Victim of Enforced or Involuntary
Disappearance, The next-of kin of a victim of enforced or involuntary disappearance may
claim for compensation as provided for under Republic Act No. 7309 and other relief
programs of the Government, primarily, but not limited to, financial compensation, and
without prejudice to other legal remedies that may be available to him or her.

SECTION 17. Rehabilitation of Reappeared Victim of Enforced ot Involuntary
Disappearance. The State shall provide for the indemnification and rehabilitation of
victims of enforced ot involuntary disappearance, including the resettlement of their family
should it be necessary. The victims shall be entitled to monetary compensation and
restitution of honor and reputation, without prejudice to other Jégal remedies that may be
available to them. Such restitution of honor and reputation shall include immediate
expunging or rectification of any derogatory record, information or public

declaration /statement on their personal circumstances, status, person, or affiliation by the
appropriate government ot private agency or agencies concerned,

SECTION 18. Implementing Rules and Regulations. The Department of Justice and
the Commission on Human Rights, in regular consultation and close coordination with
organizations of victims of human rights violations shall promulgate the rules and
regulations for the effective implementation of this Act, and shall ensure the full public
dissemination of such.

SECTION 19. Monitoring of Compliance. A Monitoring Group is hereby created to
regularly monitor and check compliance with this Act. A Commissioner of the Commission
on Human Rights shall head the Group which shall have the following as members:

1. One Undersecretary of the Department of Justice;
2. One representative from the Senate Committee on Justice and Human Rights;
3. One representative from the House Committee Human Rights;


4. One representative each from Desaparacidos and Families of Involuntary
Disappearance (FIND) and, at the discretion of the group, one more Representative
of other human rights organizations advocating against enforced disappearances.

SECTION 20. Sources of Funds. ‘The funds necessary for the implementation of this Act
shall be included in the budgets of the Commission on Human Rights and Department of
Justice under the General Appropriations Act of the year following the enactment of this
Act.

SECTION 21. Repealing Clause. All laws, dectees, executive orders, rules and regulations
and other issuances or parts thereof inconsistent with the provisions of this Act are hereby
repealed or amended accordingly.

SECTION 22. 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.

SECTION 23. Effectivity. This Act shall take effect fifteen (15) days upon its publication
in at least two (2) newspapers of general circulation.

Approved,