‘Desaparecidos’ bill OK’d
1st law in Asia vs enforced disappearance
After a campaign over two decades by human rights activists, Congress finally passed a bill principally directed against state agencies that would outlaw acts that result in disappearances, allow the prosecution of perpetrators even though their victims remain missing and impose a maximum penalty of life imprisonment.
Once signed, the measure will become the first national law in Asia that makes enforced disappearance a distinct criminal offense, according to Representative Edcel Lagman of Albay who described the bill as “a culmination of more than 20 years of militant advocacy for the desaparecidos.”
Both the Senate and the House of Representatives approved on Tuesday night the Anti-Enforced Disappearance Bill earlier crafted by a bicameral conference committee. It will now go to President Aquino for his signature.
“Enforced disappearance was an atrocious tool of the martial law regime to silence protesters and human rights advocates and continues to be employed by subsequent administrations after the end of the martial law regime,” Lagman said.
Lagman’s brother Hermon, an activist lawyer, went missing in 1977 and has not been found to this day. His mother, Cecilia, was the first chairperson of the group Families of Victims of Involuntary Disappearance (FIND).
Enforced or involuntary disappearance is defined in the reconciled bill as “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 authorization or support from the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared.”
The maximum penalty for violation of the law is reclusion perpetua, or life imprisonment, equivalent to 20 years and one day to 40 years in prison. Victims of enforced disappearance and their kin would also be entitled to compensation, restitution and rehabilitation.
The measure also outlaws secret detention facilities, and requires detention centers to provide a periodically updated registry of all detained persons in the country, a signatory to international conventions against enforced disappearances.
There is no prescription period for the crime, unless the victim has surfaced. This means that the perpetrators of involuntary disappearance could be prosecuted no matter how much time has passed since the incident.
The bill recognizes command responsibility, which means a superior officer would also be culpable for the actions of his subordinates. Subordinates, on the other hand, could defy unlawful orders if they were ordered to commit enforced disappearance.
The bill also states that it could not be suspended, even in times of war or public emergency. Violators could not be offered amnesty.
Human rights groups have been asked to join in drafting implementing rules and regulations.
No need to produce body
Senator Francis Escudero, author of the Senate bill, differentiates the new law from that of abduction or kidnapping.
“In abduction or kidnapping, there has to be a body. That’s the basic difference. In kidnapping, there’s either a body recovered or someone is known as being held hostage. In this case, the person is still missing,” Escudero said.
“If they can prove the disappearance and the participation of certain agents of the state in the disappearance, you don’t need to produce the body. That is a crime by itself,” he told the Inquirer.
“The act of involuntary disappearance is not yet considered a crime under our existing laws,” Escudero said. “We bear witness to cases of forced disappearances, and more often, these cases are left in oblivion without putting those persons responsible for the commission of the disappearances accountable.”
He said there would be separate charges against the perpetrators if the victim of enforced disappearance was found to have been tortured or killed.
“If he was mauled, the Anti-Torture Law would be used. If he’s killed, the Revised Penal Code,” Escudero said referring to the code’s provision on murder.
Escudero said that one unique feature of the bill was the requirement for all government agencies to submit to the Commission on Human Rights within six months of the law’s enactment an updated inventory of all officially recognized and controlled detention facilities and the list of detainees under their respective jurisdictions.
It would be unlawful for a government agency to maintain a detention facility outside of those on the list, Escudero said.
The law also provides that all proceedings pertaining to the issuance of writs of habeas corpus, amparo and habeas data “shall be dispensed with expeditiously.”
“As such, all courts and other concerned agencies of the government shall give priority to such proceedings,” the bill read.
Escudero said the measure would also prohibit the issuances of orders of battle—official or otherwise—by the military, police or any law enforcement agency to justify an enforced or involuntary disappearance.
“There must be no compromise on 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,” he said.
“There should be enough of desaparecidos, because enforced disappearances have emotionally, mentally and physically displaced mothers and fathers, sisters, brothers, children. These disappearances have caused us to be put under the tight watch of local and international rights groups and even foreign governments.”