Upload
karylvillanueva
View
230
Download
0
Embed Size (px)
Citation preview
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 1/46
Philippine Anti-EnforcedDisappearance law
R. A. No. 10353
GASCON, DEXTER L. VILLANUEVA, KARYL
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 2/46
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 3/46
• December 21, 2012
• President Aquino
•
The first of its kind in Asia• In connection with this: President urged by the
Human Rights Watch to also sign theInternational Convention for the Protection of
All Persons from Enforced Disappearance
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 4/46
SEC. 2. Declaration ofPolicy. –
• The State values the dignity ofevery human person and guarantees fullrespect for human rights for which highest
priority shall be given to theenactment of measures for theenhancement of the right of allpeople to human dignity, theprohibition against secret detention places,solitary confinement, incommunicado, orother similar forms of detention, the provisionfor penal and civil sanctions for suchviolations, and compensation andrehabilitation for the victims and
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 5/46
• their families, particularly with respect to theuse of torture, force, violence, threat,intimidation or any other means which vitiatethe free will of persons abducted, arrested,detained, disappeared or otherwise removedfrom the effective protection of the law.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 6/46
• Furthermore, the State adheres tothe principles and standards onthe absolute condemnation of
human rights violations set bythe 1987 PhilippineConstitution and various internationalinstruments such as, but not limited to, theInternational Covenant on Civil and Political Rights
ICCPR), and the Convention Against Tortureand Other Cruel, Inhuman or Degrading Treatmentor Punishment CAT), to which the Philippinesis a State party.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 7/46
Enforced or involuntarydisappearance
• refers to the arrest, detention, abduction or anyother form of deprivation of liberty committedby agents of the State or by persons or groups ofpersons acting with the authorization, supportor acquiescence of the State, followed by arefusal to acknowledge the deprivation ofliberty or by concealment of the fate orwhereabouts of the disappeared person, which
places such person outside the protection of thelaw. (sec.3, b)
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 8/46
Rights & Exemption
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 9/46
SEC. 4. Nonderogability of the RightAgainst Enforced or InvoluntaryDisappearance.
• The right against enforced or involuntarydisappearance and the fundamental safeguards
for its prevention shall not be
suspended under anycircumstance including politicalinstability, threat of war, state of war or other
public emergencies.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 10/46
SEC. 5. “Order of Battle” or Any Order ofSimilar Nature Not Legal Ground forEnforced or Involuntary Disappearance
• An “Order of Battle” or any order of similarnature, official or otherwise, from a superiorofficer or a public authority causing thecommission of enforced or involuntary
disappearance is unlawful and cannot beinvoked as a justifying or exempting
circumstance. Any personreceiving such an ordershall have the right todisobey it.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 11/46
SEC. 6. Right of Access toCommunication.
• It shall be the absolute right ofany person deprived of
liberty to have immediateaccess to any form ofcommunication available in
order for him or her to inform his or her family,relative, friend, lawyer or any human rightsorganization on his or her whereabouts andcondition.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 12/46
SEC. 20. Exemption fromProsecution .
• Any offender who volunteersinformation that leads to the discovery ofthe victim of enforced or involuntary
disappearance or the prosecution of theoffenders without the victim beingfound shall be exempt from anycriminal and/or civil liability under this
Act: Provided, That said offenderdoes not appear to be the mostguilty
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 13/46
SEC. 25. Applicability ofRefouler
• No person shall be expelled, returned
or extradited to another State where
there are substantial grounds to believethat such person shall be indanger of being subjected toenforced or involuntary
disappearance.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 14/46
Sec. 25
• For purposes of determining whether suchgrounds exist, the Secretary of the Department,of Foreign Affairs (DFA) and the Secretary ofthe Department of Justice (DOJ) incoordination with the Chairperson of the CHR,shall take into account all relevantconsiderations including where applicable andnot limited to, the existence in the requestingState of a consistent pattern of gross, flagrantor mass violations of human rights.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 15/46
SEC. 26. Restitution and Compensation toVictims of Enforced or InvoluntaryDisappearance and/or Their ImmediateRelatives
• The victims of enforced or involuntary
disappearance who surface alive shall beentitled to monetary
compensation, rehabilitationand restitution of honor andreputation. Such restitution of honor andreputation shall include immediate expunging orrectification of any derogatory record, informationor public declaration/statement on his or her person,personal circumstances, status, and/ororganizational affiliation by the appropriategovernment or private agency or agenciesconcerned.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 16/46
DUTIES
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 17/46
SEC. 7. Duty to Report Victimsof Enforced or InvoluntaryDisappearance. –
• Any person, not being a principal, accomplice oraccessory, who has an information of a case ofenforced or involuntary disappearance… shallimmediately report in writing thecircumstances and whereabouts of thevictim to any office of… the Department of theInterior and Local Government (DILG), theDepartment of National Defense (DND), thePhilippine National Police (PNP), the ArmedForces of the Philippines (AFP), the NationalBureau of Investigation (NBI), the City orProvincial Prosecutor, the Commission onHuman Rights (CHR) or any human rightsorganization and, if known, the victim’s family,relative, or lawyer.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 18/46
SEC. 8. Duty to Certify in Writing onthe Results of Inquiry into a ReportedDisappeared Person’s Whereabouts
• An inquiry “on the presence or whereabouts of areported victim of enforced or involuntarydisappearance, such member or officialshall immediately issue a
certification in writing to theinquiring person or entity onthe presence or absence and/orinformation on the whereabouts
of such disappeared person, stating,among others, in clear and unequivocal manner thedate and time of inquiry, details of the inquiry andthe response to the inquiry.”
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 19/46
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 20/46
SEC. 11. Submission of List ofGovernment DetentionFacilities. –
• 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 anupdated inventory or list of allofficially recognized andcontrolled detention or
confinement facilities, and the list ofdetainees or persons deprived of liberty undertheir respective jurisdictions to the CHR.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 21/46
SEC. 13. Visitation /Inspection ofPlaces of Detention andConfinement.
• The CHR or its duly authorized
representatives are hereby mandated
and authorized to conduct regular,independent, unannounced and unrestrictedvisits to or inspection of all places of detentionand confinement.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 22/46
SEC. 24. State Protection
•The State, through its appropriate
agencies, shall ensure the safety ofall persons involved in the search,
investigation and prosecution of enforced orinvoluntary disappearance including, but notlimited to, the victims, their families,complainants, witnesses, legal counsel andrepresentatives of human rights organizations
and media. They shall likewise beprotected from any intimidationor reprisal.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 23/46
Liabilities & penalties
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 24/46
SEC. 14. Liability ofCommanding Officer orSuperior.
• The immediate commanding officer of the unitconcerned of… law enforcement agencies
shall be held liable as a
principal to the crime ofenforced or involuntarydisappearance for acts
committed by him or her that shallhave led, assisted, abetted or allowed, whetherdirectly or indirectly, the commission thereof byhis or her subordinates.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 25/46
Sec. 14
• If such commanding officer hasknowledge… did not t ke
preventive or coercive actioneither before, during or immediately after itscommission, when he or she has the authority toprevent or investigate allegations of enforced orinvoluntary disappearance but failed to prevent orinvestigate such allegations, whether deliberately or
due to negligence, shall also be heldliable as principal.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 26/46
SEC. 15. Penal Provisions
(a) The penalty of reclusion perpetua and itsaccessory penalties shall be imposedupon thefollowing persons:
(1) Those who directly committed the act ofenforced or involuntary disappearance;
(2) Those who directly forced, instigated,
encouraged or induced others to commit the actof enforced or involuntary disappearance;
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 27/46
(3) Those who cooperated in the act of enforced orinvoluntary disappearance by committinganother act without which the act of enforced orinvoluntary disappearance would not have been
consummated;(4) Those officials who allowed the act or abetted
in the consummation of enforced or involuntarydisappearance when it is within their power tostop or uncover the commission thereof; and
(5) Those who cooperated in the execution of theact of enforced or involuntary disappearance byprevious or simultaneous acts.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 28/46
(b) The penalty of reclusion temporal and itsaccessory penalties shall be imposed upon thosewho shall commit the act of enforced orinvoluntary disappearance in the attemptedstage as provided for and defined under Article6 of the Revised Penal Code.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 29/46
(c) The penalty of reclusion temporal and itsaccessory penalties shall also be imposed uponpersons who, having knowledge of the act ofenforced or involuntary disappearance andwithout having participated therein, either asprincipals or accomplices, took part subsequentto its commission in any of the followingmanner:
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 30/46
(1) By themselves profiting from or assisting theoffender to profit from the effects of the act ofenforced or involuntary disappearance;
(2) By concealing the act of enforced orinvoluntary disappearance and/or destroyingthe effects or instruments thereof in order toprevent its discovery; or
(3) By harboring, concealing or assisting in the
escape of the principal/s in the act of enforced orinvoluntary disappearance, provided suchaccessory acts are done with the abuse ofofficial functions.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 31/46
(d) The penalty of prision correctional and itsaccessory penalties shall be imposed againstpersons who defy, ignore or unduly delaycompliance with any order duly issued or
promulgated pursuant to the writs of habeascorpus, amparo and habeas data or theirrespective proceedings.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 32/46
(e) The penalty of arresto mayor and its accessorypenalties shall be imposed against any personwho shall violate the provisions of Sections 6, 7,8, 9 and 10 of this Act.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 33/46
SEC. 16. Preventive
Suspension/Summary Dismissal.
• Government officials and personnel who arefound to be perpetrators… as a result of apreliminary investigation conducted for that
purpose shall be preventivelysuspended or summarilydismissed from the service,depending on the strength ofthe evidence so presented and gatheredin the said preliminary investigation or as maybe recommended by the investigating authority.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 34/46
SEC. 17. Civil Liability.
• The act of enforced or involuntary
disappearance shall render its
perpetratorsand the State agencies
which organized, acquiesced in or tolerated
such disappearance liable undercivil law.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 35/46
SEC. 18. IndependentLiability.
• 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 anyviolation of Republic Act No. 7438 ; Republic ActNo. 9745; and applicable provisions of theRevised Penal Code.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 36/46
SEC. 23. Special AmnestyLaw Exclusion.
• Persons who are changed with and/or guilty ofthe act of enforced or involuntary
disappearance shall not benefit
from any special amnestylaw or other similarexecutive measures that
shall exempt them from any penalproceedings or sanctions.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 37/46
• Two cases of disappearance reported to humanrights groups after enactment of Anti-EnforcedDisappearance Law
• Philippines: Milestone Law Criminalizes ForcedDisappearances
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 38/46
Protecting the Children ofthe Lost
• The Philippines has had its own historyof enforced disappearance and wrongfulremoval of children. The case involving
the enforced disappearance of Universityof the Philippines students KarenEmpeño and Sherlyn Cadapan isdisturbing on a number of levels, not the
least of which is Cadapan’s reportedpregnancy during captivity.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 39/46
• Apart from what her fate isnow, her reported pregnancy
raises questions about thepossible outcome of herpregnancy and, if allowed tocome to full term, the fate ofher child.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 40/46
• Philippine laws have only recentlystarted addressing the matter of theenforced disappearance and the wrongful
removal of children. There is, as yet, nodomestic law clearly defining andpunishing these human rights violations.While an assortment of laws may be
brought to bear upon them, these lawsstill fall short of complete recognition ofthe rights not to be subjected to theenforced disappearance and to thewrongful removal of children.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 41/46
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 42/46
• Philippine laws dealing with theenforced disappearance and thewrongful removal of children are
considerably less developed. Therelevant domestic laws are notsufficiently particularized to
address these violations. Theabsence of a statute defining andpunishing them highlights thelimitations of the law.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 43/46
• While there is a growingrecognition that these violationsimpinge on a range of rights
guaranteed under Philippine laws,there remains less than fullrecognition of the rights not to be
subjected to the enforceddisappearance and to the wrongfulremoval of children.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 44/46
• The Disappearances Convention, with itsexpress prohibition of the enforceddisappearance and wrongful removal of
children, represents a promisingresponse to these violations. In providingfor the manner by which these violationsshould be addressed from a legal
perspective, it sets standards by whichgovernment officials should inform theirresponsibilities.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 45/46
• There is potential for the development ofPhilippine laws, in accordance with theprovisions of this Convention. Beyond a
fundamental review of the relevantdomestic laws, the way forward for thePhilippines would include ratification ofthe Convention and adoption of
legislation enforcing the rightsguaranteed by it.
8/12/2019 Philippine Anti-Enforced Disappearance (report)
http://slidepdf.com/reader/full/philippine-anti-enforced-disappearance-report 46/46
Sources:
• Philippine Anti-EnforcedDisappearance law, R. A. No. 10353
•
PROTECTING THE CHILDRENOF THE LOST, Ricardo A. SungaIII
•
http://www.karapatan.org• http://www.hrw.org/news/