"Right Now, There Is This Culture of Impunity Covering: - Senator Rodolfo Biazon
"Right Now, There Is This Culture of Impunity Covering: - Senator Rodolfo Biazon
"Right Now, There Is This Culture of Impunity Covering: - Senator Rodolfo Biazon
ABSTRACT
I.
INTRODUCTION
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
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
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.
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.
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
II.
ENFORCED DISAPPEARANCES
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
10
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
17
disappearances
were
carried
out
14
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
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
ENFORCED
DISAPPEARANCES
AS
CRIME
AGAINST
HUMANITY
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
26
Ibid.
12
III.
MARTIAL LAW
13
29
Name
Year of Disappearance
Francisco Portem
1974
1975
1975
Bong Balatan
1975
Leticia Jimenez-Ladlad
1976
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
1977
Hermon Lagman
1977
Among them, only Adora Faye de Vera was surfaced by the military. 30
29
She was released by her military captors and later on reunited with her son.
15
IV.
31
Jonas Burgos
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 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
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
36
37
35
40
41
Supra, note 6
Supra, note 6
21
VI. REMEDIES
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
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
43
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 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
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
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
27
The Act provides for the penalty of reclusion perpetua for those who
28
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
30
VII.
More importantly, Sections 8 and 9 of the said law provides for the duties
of Government agents.
57
Prosecutor,
Judicial
Officer/Employee,
and
Quasi-Judicial
The
57
58
Anti-Desaparecidos
Law
and
its
Implementing
Rules
and
Regulations provide for restitution for the victims or their immediate relatives.
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
Status
59
60
Entitlement
Implementing Rules and Regulations (IRR) of Republic Act (R.A.) No. 10353, Sec. 27
Ibid
33
Resurfaced
compensation,
rehabilitation,
restitution of honor
and reputation
Missing or Dead
Family of victim
Monetary
compensation
61
Ibid
34
VIII.
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.
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
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.
62
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
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.
40
41
42
X.
RATIFY
THE
PROTECTION
INTERNATIONAL
OF
ALL
CONVENTION
PERSONS
FROM
FOR
THE
ENFORCED
DISAPPEARANCE
63
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
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
on
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
69
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
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
72
Ibid
47
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
73
Ibid
48
XII. CONCLUSION
74
The
International
Convention
of
All
Persons
from
Enforced
50
XIII. BIBLIOGRAPHY
LAWS
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
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
52
Puno, Reynato S., Opening Remarks on Lecture Forum on the Rule on the
Writ of Amparo
53
INTERNET SOURCES
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)
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
56