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 limbonot 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.

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

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 Peoples 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

Jose A.R. Melo, et.al, Report of the Independent Commission to Address Media and Activist
Killings, 22 January 2007
3

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

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

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
5

penalties for those who violate the law.

SCOPE AND LIMITATION

This study will discuss cases of Desaparecidos in the Philippines and

abroad. Laws, international conventions, and treaties will also be analyzed as
to their effectiveness in their respective jurisdiction. However, the focus of the
study will be the Writ of Amparo, Republic Act No. 10353 or the Anti-Enforced
or Involuntary Disappearance Act of 2012, and the International Convention
for the Protection of All Persons from Enforced Disappearance.

II.

ENFORCED DISAPPEARANCES

According to the International Convention for the Protection of All

Persons from Enforced Disappearance, Enforced Disappearance is

The arrest, detention, abduction, or any other form of deprivation of

liberty by agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the State, followed by
a refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law. 8

However, the Philippines is not a party to this convention.

Enforced Disappearance occurs when persons are arrested, 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, or by organized groups or private individuals acting on behalf of,
or with the support, direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation of their liberty,

UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, 20 December 2006
9
www.treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv16&chapter=4&lang=en
7

which places such persons outside the protection of the law.10

According to Karapatan (Alliance for the Advancement of Peoples

Rights, a human rights organization in the country, there are 759 cases of
enforced disappearances during the Marcos administration, 821 during that of
Cory Aquino's, 39 during Fidel Ramos', 26 during Joseph Estrada's, 206
during Gloria Arroyo's, and 26 during the current term of Benigno Aquino III. 11
According to Karapatan, a missing person is considered disappeared if his/her
whereabouts remain unknown for more than 72 hours. 12

According to Amnesty International, each disappearance violates a wide

set of rights such as the right to security and dignity of a person, right not to
be subjected to torture, right to fair trial, and right to life. 13

Enforced Disappearances in the World

During the dictatorships in Chile, Argentina, and other South American

10

UN Commission on Human Rights, Declaration on the Protection of All Persons from

Enforced Disappearance, 28 February 1992
11
KARAPATAN (Alliance for the Advancement of Peoples Rights), KARAPATAN MONITOR,
January-March 2015, 2015
12
KARAPATAN (Alliance for the Advancement of Peoples Rights), Glossary of Human Rights
Violations, 2011
13
AMNESTY INTERNATIONAL, Disappearances, www.amnesty.org
8

countries in 1960s-1980s, a number of activists went missing. It was during

this time that the term Desaparecido was born.

According to Jose Pepe Zalquett, 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. There
were around 1,300 cases of systematic disappearance in Chile from 19731977.14

In Argentina, the Dirty War15 led to the abduction and illegal detention of
political activists. Those who were abducted were brought on airplanes only
to be thrown out over the Atlantic Ocean.
became the symbol of the Disappeared.

In

El

Salvador,

involuntary

16

The term Desaparecidos then

17

disappearances

were

carried

out

systematically during the Salvadoran Civil War.18 An estimated 5,000 to 8,000

persons may have been abducted.

14

Zalquett, Jose, The Emergence of Disappearances as a Normative Issue, in Human

Rights: From Practice to Policy, October 2010
15
Process of National Reorganization in Argentina from 1974 to 1983
16
Long, William, Death Flight Tale Rekindles Memories of Dirty War: Argentina: Ex-officer
describes throwing leftists out of planes into sea. Thousands believed victims of this policy,
Los Angeles Times, March 13, 1995
17
The Vanished Gallery, www.yendor.com/vanished
18
UN Human Rights Council, Working Group on Enforced or Involuntary Disappearances,
Mission to El Salvador (Report), October 26, 2007
9

According to the United Nations, Sri Lanka has the second highest
number of disappeared, second only to Iraq. In Sri Lanka, it is reported that
12,000 people disappeared.19

In Thailand, there is an estimated 89 cases of enforced

disappearances from 1980 to 2014. 20 Human rights lawyer Somchai
Neelapaijit was abducted in 2004. Because his body was never found, the
police never conducted a murder investigation.21

The United States has also committed involuntary disappearances.

According to Amnesty International, at least 39 detainees are believed to be
held in secret detention sites by the United States. 22

Enforced disappearance is a predicament which has plagued the global

community for decades. Of the countries mentioned above, only Chile,
Argentina, and Thailand ratified the convention. Presently, 101 countries have

19

Asian Human Rights Commission, SRI LANKA: Registers on entry and leaving of internally
displaced persons needs to be created urgently to prevent forced disappearances, June 15,
2009
20
International Federation for Human Rights, Op-ed: Thailands empty promises on enforced
disappearances, August 30, 2015
21
Ibid.
22
Amnesty International, USA: Off the record. U.S. Responsibility for Enforced
Disappearances in the War of Terror, June 7, 2007
10

either signed, or ratified the treaty.

Thailand has already signed the International Convention for the

Protection of All Persons from Enforced Disappearance in January 9, 2012
but has yet to ratify the said convention. 23 Another activist, Pholachi Billy
Rakchongcharoen disappeared in 2014. The International Court of Justice
(ICJ) has called upon Thailands Department of Special Investigation to
conduct proper investigations regarding the disappearance. Sadly, a habeas
corpus inquiry and appeal in 2014 and 2015 failed to yield a positive result. 24

ENFORCED

DISAPPEARANCES

AS

CRIME

AGAINST

HUMANITY

The Rome Statute of the International Criminal Court categorizes

Enforced Disappearance as a crime against humanity.25 It further defines
Enforced Disappearance as the arrest, detention, or abduction of persons by,
or with the authorization, support, or acquiescence of, a State or a political
organization, followed by a refusal to acknowledge that deprivation of freedom
23

Supra, note 8
International Commission of Jurists, Thailand: strengthen efforts to solve the apparent
enforced disappearance of Billy, http://www.icj.org/thailand-strengthen-efforts-to-solve-theapparent-enforced-disappearance-of-billy/
25
UN General Assembly, Rome Statute of the International Criminal Court (last amended
2010), 17 July 1998
24

11

or to give information on the fate or whereabouts of those persons, with the

intention of removing them from the protection of the law.26

26

Ibid.
12

III.

MARTIAL LAW

On September 21, 1972, then-President Ferdinand Marcos declared

Martial Law through Presidential Proclamation 1081 (P.P. 1081). The
purpose of P.P. 1081 was to suppress lawlessness, violence, and rebellion. 27
The Martial Law period was a dark and dim period in the history of the
Philippines. There was a strict and intense crackdown on activists, leftists,
and left-leaning individuals and organizations. Hence, the State used enforced
disappearances as a tool of repression to silence the critics of the
administration.

According to Sonny Resuena of Families of Victims of Involuntary

Disappearances (FIND), an estimated 882 persons were reported as victims
of abductions and involuntary disappearances. 28

Upon the declaration of Martial Law, 38 persons were reported to have

been abducted. This number increased three-fold by 1975. It was in 1974
when the Task Force Detainees of the Philippines (TFDP) began recording
the human rights violations perpetrated by the Marcos Administration. From
27

Presidential Proclamation 1081, s.1972

Human Rights Online Philippines, Martial Law Still Haunts Victims FIND, September 20,
2014
28

13

1975 to 1977, at least twenty-three (23) students were abducted.

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. 30

29

Desaparecidos (Families of the Disappeared for Justice), Primer on DesaparecidosPhilippines, 2012

30
Ibid.
14

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

15

IV.

FAMOUS CASES OF DESAPARECIDOS

Charlie Del Rosario

Charlie Del Rosario was a professor at the Philippine College of

Commerce, now called Polytechnic University of the Philippines. He was a
member of the Kabataang Makabayan, a progressive organization. It was
reported that on March 19, 1971, 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. He was never heard
from again. He is believed to have been liquidated after his abduction.

31

Jonas Burgos

Jonas Joseph T. 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.
Witnesses claim that he was shouting Aktibista ako! Aktibista ako! when he
was being dragged out by his abductors. The security guard took note of the

31

Del Rosario, Estelita, Charlie Del Rosario, The First Documented Filipino Desaparecido.
Beyond Disappearance, Chronicles of Courage, 2006
16

plate number of the maroon Toyota Revo (TAB 194). Said plate number was
linked to a vehicle which was previously impounded and connected to the 56 th
Infantry Batallion. Despite Petitions for the issuance of a Writ of Amparo and
subsequent rulings by the Supreme Court on the accountability of the military,
he has still not resurfaced and the criminal charges are still pending.

32

Karen Empeno, Sherlyn Cadapan and Manuel Merino

Karen Empeno and Sherlyn Cadapan are students from the University of
the Philippines. Karen Empeno was a community organizer for the Alyansang
Magbubukid ng Bulakan while Sherlyn Cadapan was researching on the plight
of Bulacan farmers. Karen was a member of the League of Filipino Students
while Sherlyn was a member of Anakbayan. Manuel Merino, a farmer,
overheard their screams and was abducted when he tried to rescue them.

At 2:00 A.M. of June 26, 2006, Karen, Sherlyn, and Manuel were
abducted from a house in Bulacan by armed men. 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, Sherlyn, and Manuel. A petition for the

32

Burgos vs. Macapagal-Arroyo, et. al., G.R. 183711, June 22, 2010
17

Writ of Amparo was also filed resulting to the order to release Karen and
Sherlyn. As to Manuel, the Court held that the petitioners lacked the legal
standing to file the petition.33

In December 2011, Major General Jovito Palparan Jr., retired Lieutenant

Colonel Felipe G. Anotado, retired Master Sergeant Rizal Hilario, and Staff
Sergeant Edgardo Osorio were charged with two counts of Kidnapping and
Serious Illegal Detention. As of September 18, 2015, the case is still pending.
The Court is presently hearing the motion for bail filed by the Accused
Palparan. During the hearing on September 16, 2015, the prosecution failed
to present witnesses in addition to the witnesses previously presented. Hon.
Alexander Tamayo of Malolos RTC Branch 16 granted a final resetting after
which the motion shall be deemed submitted for resolution. It must be
underscored that the case has been pending since 2011 and accused
Palparan was only arrested in 2014.

Raymond Manalo and Reynaldo Manalo

On February 14, 2006, armed soldiers went to Raymonds house looking

33

Boac et.al. vs. Cadapan et. al., G.R. 14461-62, May 31, 2011
18

for a certain Bestre. Despite denying that he is Bestre, he was abducted and
made to ride a van. During the car ride, another person was made to sit
beside Raymond who turned out to be his brother, Reynaldo. The two
brothers were interrogated and tortured. They were asked if they were
members of the New Peoples Army and each time he denied such, he was
beaten up. They were able to escape from captivity only on August 13, 2007.
A Writ of Amparo was issued in their favor. 34

34

Secretary of National Defense, et.al. vs. Manalo et.al., G.R. 180906, October 7, 2008
19

V.

STATISTICS

According to Desaparecidos-Philippines, during the presidency of

Corazon Aquino, vigilante groups acting as military auxiliary groups targeted
activists and suspected rebels. Around 821 persons were reportedly abducted
during this administration.35

During the term of Fidel Ramos, 39 persons were reportedly abducted.

This was despite peace negotiations with the National Democratic Front.

36

During the presidency of Joseph Estrada, 26 persons were reportedly

abducted, most of whom came from the Mindanao region.

37

Upon the end of Gloria Macapagal-Arroyos term, there was an average

of one disappearance per week.38 According to Karapatan, there were 206
cases of enforced disappearances from January 21, 2001 to June 30, 2012.
68 of these are from the organized sector while 31 were women. 39

35

Desaparecidos (Families of the Disappeared for Justice), Primer on DesaparecidosPhilippines, 2012

36
Ibid.
37
Ibid.
38
Ibid.
39
Karapatan (Alliance for the Advancement of Peoples Rights), 2010 Year-End Report on the
Human Rights Situation in the Philippines, 2011
20

According to the United Nations, as of 2015, there were 786 cases of

enforced disappearances, 108 were freed, 19 remain in detention, and 29 are
dead.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 1975-2012.41

40
41

Supra, note 6
Supra, note 6
21

VI. REMEDIES

Writ of Habeas Corpus

The Writ of Habeas Corpus is governed by Rule 102 of the Rules of

Court. 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.42 In
light of the large number of human rights violations during martial law with the
suspension of the writ, the 1987 Constitution expressly provided for a
prohibition of the suspension of the writ other than in cases of invasion,
rebellion and when public safety so requires.

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, provided
that the court order was issued by a court with competent jurisdiction. The
return shall contain the following a statement whether or not he has the party
in his custody or power, or under restraint, and if he does, he must also state
the authority under which he has the party in custody, if he has the party in
custody and cannot produce him, he must also state the gravity of sickness or
infirmity why he cannot bring such person to court, and if he had transferred
42

Rule 102, Rules of Court

22

the party to the custody of another, then he must state the authority under
which he transferred the party.43

The rule also provides that in case a person was freed pursuant to a valid
writ of habeas corpus, such person shall no longer be imprisoned again for
the same offense unless upon proper order of a court with competent
jurisdiction. 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. Chief Justice Puno cited to prevent losing eye contact with these
killings and disappearances, 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. 45

43

Rule 102, Rules of Court, Sec. 10

Rule 102, Rules of Court, Sec. 17
45
Puno, Reynato S., Keynote speech on the National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances, 16 July 2007
44

23

Chief Justice Puno has proclaimed the writ of Amparo as the greatest
legal weapon to protect the constitutional rights of our people. 46

The Writ of Amparo is covered by A.M. No. 07-9-12-SC. The Rule on the
Writ of Amparo provides that the petition is available to any person whose
right to life, liberty, and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private
individual or entity.47 It further expressly provides that the rule covers
extrajudicial killings and enforced disappearances.

The petition must contain the personal circumstances of the petitioner,

name and personal circumstances of the respondent, the right to life, liberty,
or security of the aggrieved party violated or threatened to be violated,
investigation conducted, actions and recourses taken by the petitioner, and
the relief prayed for.48

The respondent, upon issuance of the writ, must file a verified written
return which should contain lawful defenses to show that respondent did not
violate or threated to violate the aggrieved partys right to life, liberty, and
46

Puno, Reynato S., Opening Remarks on Lecture Forum on the Rule on the Writ of Amparo
The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 1
48
The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 5
47

24

security, the steps taken by the respondent to determine the fate or

whereabouts of the aggrieved party, all relevant information in his possession,
if the respondent is a public official, he must also state the actions taken or
will be taken to verify the identity of the aggrieved party, recover and preserve
evidence related to the death or disappearance of the person, identify
witnesses and obtain statements, determine cause, manner, and time of
death or disappearance, verify and apprehend the persons involved, and
bring the suspected officers before a competent court. 49

Literally the writ of Protection, it does not allow a military plea of denial
which is available in the Writ of Habeas Corpus. It covers extralegal killings
and enforced disappearances as well as threats thereof.

The Rule on the Writ of Amparo embodies the courts directive to police
agencies to undertake specified courses of action to address the
disappearance of an individual. 50 Although it does not determine criminal
liability, it determines, however, responsibility and accountability.

49
50

R.A. 10353: DESAPARECIDOS LAW

The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 9

Razon et.al. vs. Tagitis, G.R. No. 182498, December 3, 2009
25

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. This law defines and penalizes the crime of enforced
disappearance.

According to this law, the elements of enforced disappearance are:

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.51

It is categorized as a crime against persons and a continuing crime. 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, in which case the prescription period is 25 years. However, the
51

R.A. 10353, Sec. 3(b)

26

law explicitly covers only cases of enforced disappearances. Victims who

were killed are not under the purview of this law.

The law defines Agents of the State as those who perform a public
function in the government.52 A novel provision in the law strengthens the
concept of Command Responsibility. Section 14 provides the liability of the
Commanding Officer or Superior. Here, 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. In addition, officers
who have knowledge that the acts were committed within their area of
responsibility will also be held liable as principals. 53

Section 4 of the Act provides for the non-derogability of the Right Against
Enforced or Involuntary Disappearance. It states that the right against
enforced or involuntary disappearance shall not be suspended even during
times of political instability, threat of war, state of war or other public
emergencies.54

Under the law, the State is responsible for the enactment of measures for
52

R.A. 10353, Sec. 3(a)

R.A. 10353, Sec. 14
54
R.A. 10353, Sec. 4
53

27

the enhancement of the right of all people to human dignity, prohibition of

secret detention places, solitary confinement and other forms of deprivation of
liberty. The Act further provides the right to communication of any person
detained, the right against the use of the order of battle, right of the families
to visit or inspect detention places, right of the victims to file charges, right of
the families to be compensated, right of victims who have resurfaced to
medical care.

Government authorities are prohibited from using the order of battle as

a justification for the commission of enforced disappearances. Upon inquiry,
the PNP, AFP, NBI, 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. Upon inquest or preliminary investigation, if the subject
thereof is found to be a victim of enforced disappearance, the inquest or
public prosecutor or any other officer, shall disclose said information to the
family of the person detained, to human rights organizations, or the victims
lawyer through expedient means. Government agencies are also required to
keep an updated list of all detained or confined persons.

The Act provides for the penalty of reclusion perpetua for those who
28

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 enforced disappearance.
Those who attempted or concealed the crime or destroyed evidence shall be
punished with reclusion temporal. Those who disobey writs or orders of the
court shall be punished with prision correccional. Those who violate the stated
duties of government authorities shall be punished with arresto mayor. After
the preliminary investigation, preventive suspension or summary dismissal
may be imposed on government officials and personnel who are found to be
the perpetrators. A notable feature of the law is the exclusion from special
amnesty of the persons convicted of committing enforced disappearance.

Despite the noble intentions of the law, it has failed to decrease enforced
disappearances. Lorena P. Santos of FIND refers to it as a dog that doesnt
hunt.55 Despite the enactment of the law, cases of enforced disappearances
still take place. Since its enactment in 2012, enforced disappearances
continue to happen and until now, no one has been prosecuted under this
toothless law.

55

Desaparecidos Philippines, Desaparecidos Law a Failure, March 17, 2014

https://desaparesidos.wordpress.com/2014/03/17/anti-disappearance-law-a-failuredesaparecidos/
29

30

VII.

REMEDIES UNDER R.A. 10353

Duties of Government Agents

According to R.A. 10353, any person who shall information regarding an

enforced disappearance should immediately report the same to the
following government agencies/officers:
1. Department of Interior and Local Government (DILG)
2. Department of National Defense (DND)
3. Philippine National Police (PNP)
4. Armed Forces of the Philippines (AFP)
5. National Bureau of Investigation (NBI)
6. City or Provincial Prosecutor
7. Commission of Human Rights (CHR)
8. Any human rights organization
9. Victims family or lawyer56

More importantly, Sections 8 and 9 of the said law provides for the duties
of Government agents.

According to Section 8, in case a family member, lawyer, media

56

R.A. 10353, Sec. 7

31

personnel, or representative of a human rights organization inquires about the

presence or absence of a certain person in their custody, the a member or
official of the detention center, Philippine National Police (PNP) or its
agencies, Armed Forces of the Philippines (AFP) and its agencies, National
Bureau of Investigation (NBI), hospital, 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.

57

Furthermore, R.A. 10353 provides the duty of the Inquest/Investigating

Public

Prosecutor,

Judicial

Officer/Employee,

and

Quasi-Judicial

Officer/Employee. 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, the aforementioned officers should
immediately disclose his whereabouts to his/her immediate family relatives,
lawyers, to a human rights organization. 58

The

57
58

Restitution for victims or their families

Anti-Desaparecidos

Law

and

its

Implementing

Rules

and

R.A. 10353, Sec. 8

R.A. 10353, Sec. 9
32

Regulations provide for restitution for the victims or their immediate relatives.

According to the Implementing Rules and Regulations of R.A. 10353, the

victims of enforced disappearances who shall later on surface alive shall be
entitled to monetary compensation, rehabilitation, and restitution of honor and
reputation.59

The Implementing Rules and Regulations further clarified that the term
victims as provided in R.A. 10353 does not only mean those who surface
alive but extends to those who continue to be missing or are subsequently
found dead.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.A.) No. 10353, Sec. 27
Ibid
33

Resurfaced

Victim and relatives within the Monetary

fourth degree of consanguinity

compensation,
rehabilitation,
restitution of honor
and reputation

Missing or Dead

Family of victim

Monetary
compensation

In order to prove the claim for compensation, the following pieces of

evidence will be considered in proving the existence of an enforced
disappearance:

1. National Prosecution Service Resolution

2. Commission of Human Rights Resolution
3. Records of the National Historical Institute or the Bantayog ng mga
Bayani Memorial Center
4. Writ of Amparo, Habeas Corpus, Habeas Data, or Court Order
5. Roll of victims of enforced or involuntary disappearance officially
issued subsequently by the Government.61

61

Ibid
34

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, the enactment
of the Desaparecidos Law of 2012 effectively adopts the Conventions
definition of enforced or involuntary disappearances. The law punishes the
abduction by State Agents of people suspected to be involved in antigovernment activities.

The Philippines is one of the countries notorious for extra-judicial killings

and enforced disappearances. The Implementing Rules and Regulations of
the said law states that as a matter of public policy, the State shall adhere to
the principles and standards set by international human rights instruments
such as the United Nations Declaration of Human Rights, International
Covenant on Civil and Political Rights, International Covenant on Economic,
Social, and Cultural Rights, Convention against Torture and other Cruel,
Inhuman, or Degrading Treatment or Punishment, Convention on the Rights
of the Child, Convention on the Elimination of all Forms of Discrimination
against Women, and theUnited Nations Declaration on the Protection of all
Persons from Enforced Disappearance.
35

Since it is a fairly new law, there is no jurisprudence yet covering the law.
However, this is a product of years of struggle for justice. Various procedural
remedies are available and have been utilized by certain parties. The Writ of
Habeas Corpus and the Writ of Amparo have been availed of in a number of
cases of enforced disappearances. However, the said writs are procedural in
nature. They do not provide for criminal liability and accountability. This is
where R.A. 10353 steps in and provides for a substantive remedies and
liabilities on the part of State Agents.

As in the cases of Jonas Burgos, Sherlyn Cadapan, Karen Empeno,

Manuel Merino, Manalo brothers, and other cases of desaparecidos, the writs
of Habeas Corpus and Amparo proved to be insufficient to surface the victims
and enforce liability on the part of the government. Since the writs are only
procedural and not criminal, 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.

Through R.A. 10353, however, state agents may be held criminally liable
and may be punished up to the most extreme penalty of Reclusion Perpetua.

36

In addition, the law recognizes doctrine of command responsibility by holding

commanding officers or superiors liable. The law further recognizes the Order
of Battle which is any document made by the military, police, 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. It is expressly stated by R.A.
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. 62 The law further gives
substantive rights to persons deprived of their life, liberty, and security such as
the right to communication and compensation.

However, 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. The law must
further provide for an environment which is more conducive to reporting such
incidents. The fear lies with the little people being held responsible to the full
extent while the masterminds remain scot-free.

Furthermore, the law only provides restitution to victims who resurface

62

R.A. 10353, Implementing Rules and Regulations, February 12, 2013

37

but fails to give the same to the benefit of families of victims who remain
missing or are later on found dead.

The law further fails to cover extrajudicial killings, who are also noncombatants. Law enforcement agencies should be reminded that in a
democratic state such as ours, 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.

38

IX.

PROPOSED AMENDMENTS

Provide penalties for failure of government officials to

cooperate with the search for Desaparecidos.

The root of the problem of enforced disappearances is impunity. The

Desaparecidos Law only provides for penalties for state officials who allowed
the consummation of enforced disappearance, or had committed any of the
general punishable acts. However, it does not provide for any penalty for
failure to cooperate. State officials and agents who commit enforced
disappearances take comfort in the idea that their obligation can end with a
mere denial. This only makes the exercise of this law futile as government
agents and officials can just easily deny or claim lack of knowledge.

Provide reparation for families of victims who have been

judicially declared as disappeared but have not resurfaced.

Sections 26 and 27 of the Desaparecidos Law provides for restitution and

compensation to victims and/or their immediate relatives. Although it is
provided in the Implementing Rules and Regulations that victims also

39

include those who have not resurfaced, it is not clear as to how it may be
sufficiently proven. In order to fully give life to the intent of the law, the family
of the victims who have not resurfaced should be entitled to the restitution
provided to victims who have resurfaced. This may be done through a judicial
declaration of the victim as a desaparecido, which shall consider, in addition
to the proof required in Sec. 27 of the IRR, other evidence which support the
allegation of enforced disappearance.

Provide a strict timeline regarding the disposition of cases filed

under R.A. 10353

Time is of the essence when it comes to enforced disappearances.

Prolonging the period of disappearance would only allow for further harm to
happen to the victim. Hence, the law should be amended to provide a strict
timeline of disposition of cases. It should be treated like Habeas Corpus cases
which require speedy disposition so as to protect the liberty of the victim.

40

Provide a mechanism for victims of enforced disappearances to

be declared presumptively dead for the purpose of succession.

Victims of enforced disappearances who dont surface are always in

a state of limbo, with their family and relatives not knowing whether their
loved one is still alive. By experience, most of the disappeared either
remain missing for a very long time or do not even resurface at all.
Hence, 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. It is
beneficial for purposes of opening their succession, for granting of
insurance benefits, and other benefits arising from death such as SSS
benefits.

Provide for the establishment of a governmental body which

shall have primary responsibility over supervision of pending
cases, providing guidance and assistance for institution of
cases, and applications for reparation and compensation,
among others.

41

In addition to the Commission of Human Rights, 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. It shall be primarily responsible for supervision of pending
cases, filing of prospective cases, provision of legal assistance to victims or
their families, assess applications for reparations and compensation, and
coordinate with other State agencies and the general public regarding issues
related to enforced disappearances. It shall be responsible for establishing
memorials, institutionalizing the celebration of the International Day of the
Disappeared, and spreading awareness of enforced disappearances to
various sectors of the country.

42

X.

RATIFY

THE

PROTECTION

INTERNATIONAL
OF

ALL

CONVENTION

PERSONS

FROM

FOR

THE

ENFORCED

DISAPPEARANCE

In 1992, the United Nations General Assembly approved the Declaration

on the Protection of All Persons from Enforced Disappearance. However, the
International Convention for the Protection of All Persons from Enforced
Disappearance was only finalized in 2006.

The convention defines enforced disappearance as the arrest, detention,

abduction, or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorization, support, or
acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such person outside the protection of law.

63

This convention categorizes enforced disappearance as a crime against

humanity.64 Hence, it puts cases of enforced disappearances under the

63

UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, Article 2, 20 December 2006
64
UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, Article 5, 20 December 2006,
43

jurisdiction of the International Criminal Court. 65

The Convention mandates the State Parties to hold criminally liable any
person who commits, orders, solicits, or induces the commission of, or
attempts to commit, or is an accomplice to or participates in an enforced
disappearance, 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 who exercised
effective responsibility for or control over activities which were concerned with
the crime of enforced disappearance, or failed to take all necessary and
reasonable measures to prevent or repress the commission of an enforced
disappearance.66

The Convention provides for the establishment of the Committee

on

Enforced Disappearances. The Committee is empowered to visit a State Party

alleged to be seriously violating the provisions of the Convention.

67

representative from the Committee may pay a visit to the State Party and
communicate the proper observations and recommendations.
65

UN General Assembly, Rome Statute of the International Criminal Court (last amended
2010), Article 5, July 17, 1998
66
UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, Article 6, 20 December 2006,
67
UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, Article 33, 20 December 2006,
44

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, it may
bring the matter to the attention of the General Assembly of the United
Nations.68

According to Atty. Edre Olalia, Secretary General of the National Union of

Peoples Lawyers (NUPL), the above provisions are probably the reason why
the Government has yet to ratify the Convention.

69

Upon ratification of the

Convention, it will be incumbent for the State Party to allow visits of special
rapporteurs in the country.

68

UN General Assembly, International Convention for the Protection of All Persons from
Enforced Disappearance, Article 34, 20 December 2006,
69
Bulatlat.com, Ratify UN Convention against enforced disappearances kin of victims, June
7, 2014
45

XI.

PROCEDURE

OF

FILING

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), 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. 70

Furthermore, according to the OHCHR, a complaint against a State may

be brought subject to the following requirements:
1. It must be a State party either through ratification or accession.
2. The State party must have recognized the competence of the
Committee to examine individual complaints.71
With regard to the second requirement, the Committee referred to is the

70

Office of the High Commissioner for Human Rights, Human Rights Bodies
Complaints Procedures,
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx (Last
accessed on 28 December 2015)
71
Office of the High Commissioner for Human Rights, Human Rights Treaty Bodies
Individual Communications,
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.a
spx#procedureCED (Last accessed on 04 January 2016)
46

Committee of Enforced Disappearance which is comprised of 10 experts,

meeting biannually, who are tasked to deliberate on the complaints filed by
individuals.

In the case of enforced disappearances, anyone may file the complaint

on behalf of another person, as long as the above requisites have been met,
even if the consent of the victim has not been acquired.

The complaint must state the following information:

1. Alleged victims name
2. Nationality
3. Date of Birth
4. Mailing Address
5. State to which the complaint is directed
6. Request to not disclose the name of the victim if the situation calls for it
7. Facts on which the complaint is based
8. Exhaustion of remedies available in the State Party72

After deciding on the admissibility of the complaint, the Committee shall

communicate the complaint to the State Party which shall then be required to

72

Ibid
47

file an answer or written explanations that are related to the admissibility,

merits, and previous remedies provided, if any.73

The Committee shall then decide on the merits of the case. If the case is
decided against the State Party, the former shall provide its findings and
recommendations. The latter is given 180 days from the decision to provide
information

regarding

the

steps

undertaken

to

implement

the

recommendations given by the Committee.

73

Ibid
48

XII. CONCLUSION

In a nutshell, the Desaparecidos Law of 2012 is a welcome addition to

the legal system of the Philippines. Impunity, which is the exemption from
punishment or freedom from injurious consequences of an action 74, is one of
the main problems in the government and in the Philippine society as a whole.
This law is an instrument aimed to end impunity. Through this law, the
prevalence of enforced disappearances in the country is now legally
recognized and has been conceived as an actual criminal act. The main
challenge is the actual enforcement of the law.

Condemnation of enforced disappearance is not enough. There should

be actual political will to hold perpetrators accountable and criminally liable.
There should be actual enforcement of the law.

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.
The ratification of the International Convention of All Persons from

74

Free Dictionary, Retrieved 17 September 2015

49

Enforced Disappearance would allow for additional measures to combat

impunity, prevent recurrence of involuntary disappearances, and enforcement
of the rights of victims.

The

International

Convention

of

All

Persons

from

Enforced

Disappearance does not intend to be an absolute safeguard against enforced

disappearances. It must be stressed, however, 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. It is a sad reality that the State will most
likely avoid prosecution of enforced disappearances, mainly because
enforced disappearances are acts of the State itself or its agents. Hence, an
international oversight committee can provide the venue for prosecution when
the State refuses.

50

XIII. BIBLIOGRAPHY

LAWS

Desaparecidos Law, R.A. 10353, December 21, 2012

Presidential Proclamation 1081, s.1972
R.A. 10353, Implementing Rules and Regulations, February 12, 2013
Rule 102, Rules of Court
The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC
Implementing Rules and Regulations, R.A. 10353

CASES

Boac et.al. vs. Cadapan et. al., G.R. 14461-62, May 31, 2011
Burgos vs. Macapagal-Arroyo, et. al., G.R. 183711, June 22, 2010
Secretary of National Defense, et.al. vs. Manalo et.al., G.R. 180906, October
7, 2008
Razon et.al. vs. Tagitis, G.R. No. 182498, December 3, 2009

ARTICLES

Amnesty International, USA: Off the record. U.S. Responsibility for Enforced

51

Disappearances in the War of Terror, June 7, 2007

Asian Human Rights Commission, SRI LANKA: Registers on entry and

leaving of internally displaced persons needs to be created urgently to
prevent forced disappearances, June 15, 2009

Bulatlat.com, Ratify UN Convention against enforced disappearances kin of

victims, June 7, 2014

Desaparecidos (Families of the Disappeared for Justice), Primer on

Desaparecidos-Philippines, 2012

Del Rosario, Estelita, Charlie Del Rosario, The First Documented Filipino
Desaparecido. Beyond Disappearance, Chronicles of Courage, 2006

Human Rights Online Philippines, Martial Law Still Haunts Victims FIND,
September 20, 2014

International Federation for Human Rights, Op-ed: Thailands empty

promises on enforced disappearances, August 30, 2015

52

KARAPATAN (Alliance for the Advancement of Peoples Rights), Glossary of

Human Rights Violations, 2011

KARAPATAN (Alliance for the Advancement of Peoples Rights), KARAPATAN

MONITOR, January-March 2015, 2015

Karapatan (Alliance for the Advancement of Peoples Rights), 2010 Year-End

Report on the Human Rights Situation in the Philippines, 2011

Long, William, Death Flight Tale Rekindles Memories of Dirty War:

Argentina: Ex-officer describes throwing leftists out of planes into sea.
Thousands believed
victims of this policy, Los Angeles Times, March 13, 1995

Puno, Reynato S., Keynote speech on the National Consultative Summit on

Extrajudicial Killings and Enforced Disappearances, 16 July 2007

Puno, Reynato S., Opening Remarks on Lecture Forum on the Rule on the
Writ of Amparo

Zalquett, Jose, The Emergence of Disappearances as a Normative Issue, in

Human Rights: From Practice to Policy, October 2010

53

INTERNET SOURCES

AMNESTY INTERNATIONAL, Disappearances, www.amnesty.org (last

accessed on October 15, 2015)

International Commission of Jurists, Thailand: strengthen efforts to solve the

apparent enforced disappearance of Billy, http://www.icj.org/thailandstrengthen-efforts-to-solve-the-apparent-enforced-disappearance-of-billy/ (last
accessed on October 15, 2015)

The Vanished Gallery, www.yendor.com/vanished (last accessed on October

15, 2015)

Desaparecidos Philippines, Desaparecidos Law a Failure, March 17, 2014

https://desaparesidos.wordpress.com/2014/03/17/anti-disappearance-law-afailure-desaparecidos/ (Last accessed on October 15, 2015)

www.treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv16&chapter=4&lang=en (last accessed on October 15, 2015)

54

Office of the High Commissioner for Human Rights, Human Rights Bodies
Complaints Procedures
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx
(Last accessed on 28 December 2015)

Office of the High Commissioner for Human Rights, Human Rights Treaty
BodiesIndividual Communications
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunicati
ons.aspx#procedureCED
(Last accessed on 04 January 2016)

UNITED NATIONS SOURCES

UN General Assembly, International Convention for the Protection of All

Persons from Enforced Disappearance, 20 December 2006

UN Commission on Human Rights, Declaration on the Protection of All

Persons from Enforced Disappearance, 28 February 1992

UN General Assembly, Rome Statute of the International Criminal Court (last

amended 2010), 17 July 1998

55

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

UN Human Rights Council, Report of the Working Group on Enforced or

Involuntary Disappearances, 28 January 2013

UN Human Rights Council, Report of the Working Group on Enforced or

Involuntary Disappearances, 10 August 2015

UN Human Rights Council, Working Group on Enforced or Involuntary

Disappearances, Mission to El Salvador (Report), October 26, 2007

UN Office of the United Nations High Commissioner for Human Rights

(OHCHR), Fact Sheet No. 6, Rev.3, Enforced or Involuntary Disappearances,
July 2009

56