ENFORCED OR INVOLUNTARY DISAPPEARANCE -

REPUBLIC ACT NO. 10353, known as the "Anti-Enforced or Involuntary Disappearance Act of 2012″, declares that the State values the DIGNITY of every human person and guarantees full respect for HUMAN RIGHTS.

It declares that 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 CONFINEMENT, INCOMMUNICADO, or other SIMILAR FORMS OF DETENTION, COMPENSATION AND REHABILITATION for the victims and their families.

More particularly, it penalizes 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 .

Furthermore, it declares that the State adheres to the principles and standards on the absolute condemnation of human rights violations set by the 1987 PHILIPPINE CONSTITUTION and various international instruments such as, but not limited to, the INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR), and the CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CAT), to which the Philippines is a STATE PARTY.

Section 3 of the Act defines "ENFORCED OR INVOLUNTARY DISAPPEARANCE" 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 THE AUTHORIZATION , SUPPORT OR ACQUIESCENCE OF THE STATE, followed by a REFUSAL TO ACKNOWLEDGE the deprivation of liberty or by CONCEALMENT of the FATE OR WHEREABOUTS of the disappeared person, which places such person OUTSIDE THE PROTECTION OF THE LAW.

Section 4 of the Act provides for the principle of NONDEROGABILITY OF THE RIGHT AGAINST ENFORCED OR INVOLUNTARY DISAPPEARANCE, which means that the RIGHT against enforced or involuntary disappearance and the fundamental SAFEGUARDS for its prevention SHALL NOT BE SUSPENDED UNDER ANY CIRCUMSTANCE INCLUDING POLITICAL INSTABILITY, THREAT OF WAR, STATE OF WAR OR OTHER PUBLIC EMERGENCIES.

Under Section 5 of the Act, an "ORDER OF BATTLE" or ANY ORDER of similar nature, OFFICIAL OR OTHERWISE , from a superior officer or a public authority causing the COMMISSION of ENFORCED OR INVOLUNTARY DISAPPEARANCE is UNLAWFUL and CANNOT BE INVOKED AS A JUSTIFYING OR EXEMPTING CIRCUMSTANCE.

Any person receiving such an order shall have the RIGHT TO DISOBEY IT.

Section 6 of the Act establishes the RIGHT OF ACCESS TO COMMUNICATION.

It shall be the ABSOLUTE RIGHT of any person deprived of liberty to have IMMEDIATE ACCESS to any form of COMMUNICATION available in order for him or her to INFORM his or her FAMILY, RELATIVE , FRIEND , LAWYER or ANY HUMAN RIGHTS ORGANIZATION on his or her WHEREABOUTS AND CONDITION.

Section 10 provides that all persons detained or confined shall be placed solely in OFFICIALLY RECOGNIZED AND CONTROLLED PLACES OF DETENTION OR CONFINEMENT where an official up-to-date REGISTER of such persons shall be maintained. RELATIVES, LAWYERS, JUDGES, OFFICIAL BODIES and ALL PERSONS WHO HAVE LEGITIMATE INTEREST in the whereabouts and condition of the persons deprived of liberty shall have FREE ACCESS TO THE REGISTER.

All information contained in the register shall be regularly or upon request REPORTED to the CHR or ANY OTHER AGENCY of government tasked to monitor and protect HUMAN RIGHTS and shall be made AVAILABLE TO THE PUBLIC.

Section 12 of the Act provides that all proceedings pertaining to the issuance of the WRITS OF HABEAS CORPUS, AMPARO AND HABEAS DATA shall be dispensed with EXPEDITIOUSLY. As such, all courts and other concerned agencies of government shall give PRIORITY to such proceedings.

Moreover, any order issued or promulgated pursuant to such WRITS or their respective proceedings shall be EXECUTED AND COMPLIED WITH IMMEDIATELY.

Section 13 empowers the CHR or its duly authorized representatives to conduct regular, independent, unannounced and UNRESTRICTED VISITS to or INSPECTION of ALL PLACES OF DETENTION AND CONFINEMENT.

More importantly, Section 14 of the Act provides that the immediate COMMANDING OFFICER of the unit concerned of the AFP or the immediate senior official of the PNP and other law enforcement agencies shall be held LIABLE as a PRINCIPAL to the crime of enforced or involuntary disappearance for acts COMMITTED BY HIM OR HER that shall have led, assisted, ABETTED or ALLOWED , whether DIRECTLY OR INDIRECTLY , the commission thereof BY HIS OR HER SUBORDINATES.

If such commanding officer HAS KNOWLEDGE of or, owing to the circumstances at the time, SHOULD HAVE KNOWN that an enforced or involuntary disappearance is being committed, or has been committed by SUBORDINATES or by OTHERS WITHIN THE OFFICER’S AREA OF RESPONSIBILITY and, despite such knowledge, DID NOT TAKE PREVENTIVE OR COERCIVE ACTION either before, during or immediately after its commission, when he or she has the authority TO PREVENT OR INVESTIGATE allegations of enforced or involuntary disappearance but FAILED TO PREVENT OR INVESTIGATE such allegations, whether DELIBERATELY or due to NEGLIGENCE, shall also be held LIABLE AS PRINCIPAL .

Under Section 15 of the Act, the penalty of RECLUSION PERPETUA and its ACCESSORY PENALTIES shall be imposed upon the following persons:

(1) Those who DIRECTLY COMMITTED the act of enforced or involuntary disappearance;

(2) Those who DIRECTLY FORCED , INSTIGATED , ENCOURAGED or INDUCED OTHERS TO COMMIT the act of enforced or involuntary disappearance;

(3) Those who COOPERATED in the act of enforced or involuntary disappearance BY COMMITTING ANOTHER ACT without which the act of enforced or involuntary disappearance would not have been consummated;

(4) Those OFFICIALS who ALLOWED the act or ABETTED in the consummation of enforced or involuntary disappearance when it is WITHIN THEIR POWER TO STOP OR UNCOVER THE COMMISSION thereof; and

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

The same section provides that the penalty of RECLUSION TEMPORAL and its ACCESSORY PENALTIES shall be imposed upon those who shall COMMIT the act of enforced or involuntary disappearance in the ATTEMPTED STAGE as provided for and defined under ARTICLE 6 of the REVISED PENAL CODE.

The penalty of RECLUSION TEMPORAL and its ACCESSORY PENALTIES shall also be imposed upon persons who, HAVING KNOWLEDGE of the act of enforced or involuntary disappearance and WITHOUT HAVING PARTICIPATED therein, either as principals or accomplices, TOOK PART SUBSEQUENT TO ITS COMMISSION in any of the following manner:

(1) By themselves PROFITING from or ASSISTING the offender TO PROFIT from the EFFECTS of the act of enforced or involuntary disappearance;

(2) By CONCEALING the act of enforced or involuntary disappearance and/or DESTROYING the EFFECTS or INSTRUMENTS thereof in order to PREVENT ITS DISCOVERY ; or

(3) By HARBORING , CONCEALING or ASSISTING in the ESCAPE of the PRINCIPAL/S in the act of enforced or involuntary disappearance, PROVIDED such accessory acts are done with the ABUSE OF OFFICIAL FUNCTIONS.

The penalty of PRISON CORRECTIONAL and its ACCESSORY PENALTIES shall be imposed against persons who DEFY , IGNORE or UNDULY DELAY COMPLIANCE with any ORDER duly issued or promulgated pursuant to the WRITS OF HABEAS CORPUS , AMPARO and HABEAS DATA or their respective proceedings.

Under Section 16 of the Act, GOVERNMENT OFFICIALS AND PERSONNEL who are found to be PERPETRATORS of or PARTICIPANTS IN ANY MANNER in the commission of enforced or involuntary disappearance as a result of a PRELIMINARY INVESTIGATION conducted for that purpose shall be PREVENTIVE SUSPENDED OR SUMMARILY DISMISSED from the service, depending on the strength of the evidence so presented and gathered in the said preliminary investigation or as may be recommended by the investigating authority.

As to the CIVIL ASPECT of the crime, Section 17 of the Act provides that the act of enforced or involuntary disappearance shall render its PERPETRATORS and the STATE AGENCIES which ORGANIZED, ACQUIESCED in or TOLERATED such disappearance LIABLE UNDER CIVIL LAW.

Section 18 provides for the doctrine of INDEPENDENT LIABILITY.

The CRIMINAL LIABILITY of the offender under the Act shall be INDEPENDENT of or WITHOUT PREJUDICE to the prosecution and conviction of the offender for any violation of REPUBLIC ACT NO. 7438 (RIGHTS of Person Arrested, Detained or Under Custodial Investigationsl), REPUBLIC ACT NO . 9745, (TORTURE and Other Cruel, Inhuman and Degrading Treatment or Punishment), and applicable provisions of the REVISED PENAL CODE.

Section 19 establishes the doctrine of NONEXCLUSIVITY OR DOUBLE JEOPARDY UNDER INTERNATIONAL LAW.

Any investigation, trial and decision IN ANY PHILIPPINE COURT , or body for any violation of the Act shall be WITHOUT PREJUDICE to any investigation, trial, decision or any other legal or administrative process before any appropriate INTERNATIONAL COURT OR AGENCY under applicable INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW.

Under Section 20 of the Act, ANY OFFENDER who VOLUNTEERS INFORMATION that leads to the DISCOVERY of the victim of enforced or involuntary disappearance or the PROSECUTION of the offenders without the victim being found shall be EXEMPT FROM ANY CRIMINAL AND/OR CIVIL LIABILITY under this Act: provided, that said offender DOES NOT APPEAR TO BE THE MOST GUILTY.

Section 21 of the Act applies the CONTINUING OFFENSE rule.

An act constituting enforced or involuntary disappearance shall be considered a CONTINUING OFFENSE as long as the perpetrators CONTINUE TO CONCEAL the fate and whereabouts of the disappeared person and such circumstances have not been determined with certainty.

An important provision of the Act is Section 22 (STATUTE OF LIMITATIONS) thereof which provides that the PROSECUTION of persons responsible for enforced or involuntary disappearance SHALL NOT PRESCRIBE UNLESS THE VICTIM SURFACES ALIVE. In which case, the prescriptive period shall be TWENTY-FIVE (25) YEARS from the date of such REAPPEARANCE.

Section 23 provides that persons who are CHARGED with and/or GUILTY of the act of enforced or involuntary disappearance SHALL NOT BENEFIT from any SPECIAL AMNESTY LAW or other similar EXECUTIVE MEASURES that shall exempt them from any penal proceedings or sanctions.

Section 25. of the Act provides no person shall be expelled, returned or EXTRADITED to another State where there are SUBSTANTIAL GROUNDS TO BELIEVE that such person SHALL BE IN DANGER OF BEING SUBJECTED TO enforced or involuntary disappearance.

For purposes of determining whether such grounds exist, the Secretary of the Department, of Foreign Affairs (DFA) and the Secretary of the Department of Justice (DOJ) in coordination with the Chairperson of the CHR, shall take into account all relevant considerations including where applicable and not limited to, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.

Section 26 provides that the VICTIMS of enforced or involuntary disappearance who surface alive shall be entitled to MONETARY COMPENSATION , REHABILITATION and RESTITUTION OF HONOR AND REPUTATION.

Such RESTITUTION OF HONOR AND REPUTATION shall include immediate EXPUNGING OR RECTIFICATION of any DEROGATORY RECORD, INFORMATION OR PUBLIC DECLARATION /STATEMENT on his or her person, personal circumstances, status, and/or organizational affiliation by the appropriate government or private agency or agencies concerned.

The IMMEDIATE RELATIVES of a victim of enforced or involuntary disappearance, within the fourth civil degree of consanguinity or affinity, may also claim for COMPENSATION as provided for under REPUBLIC ACT NO. 7309, entitled "An Act Creating a BOARD OF CLAIMS under the Department of Justice for VICTIMS of Unjust Imprisonment or Detention and Victims of Violent Crimes and For Other Purposes", and OTHER RELIEF PROGRAMS OF THE GOVERNMENT.

The PACKAGE OF INDEMNIFICATION for both the VICTIMS and the IMMEDIATE RELATIVES within the FOURTH CIVIL DEGREE OF CONSANGUINITY OR AFFINITY shall be WITHOUT PREJUDICE to OTHER LEGAL REMEDIES that may be available to them.

Under Section 28 of the Act, the DOJ, the DSWD, the CHR, the Families of Victims of Involuntary Disappearance (FIND) and the Families of Desaparecidos for Justice (Desaparecidos), IN CONSULTATION WITH other human rights organizations, shall JOINTLY PROMULGATE the RULES AND REGULATIONS for the effective IMPLEMENTATION of the Act and shall ensure the FULL DISSEMINATION of the same TO THE PUBLIC.