Policy, purpose, and non-suspension
- The State values the dignity of every human person and guarantees full respect for human rights.
- The State prioritizes measures that enhance the right of all people to human dignity and prohibit secret detention places and forms of detention such as solitary confinement, incommunicado, or similar detention practices.
- The State provides for penal and civil sanctions and for compensation and rehabilitation for victims and their families.
- The State condemns human rights violations and adheres to principles in the 1987 Philippine Constitution, the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
- The right against enforced or involuntary disappearance and 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.
Key definitions and protected persons
- “Agents of the State” are persons who, by direct provision of law, popular election, or appointment by competent authority, take part in the performance of public functions or perform public duties as an employee, agent, or subordinate official.
- “Enforced or involuntary disappearance” is the arrest, detention, abduction, or any other deprivation of liberty committed by agents of the State or by persons acting with authorization, support, or acquiescence of the State, followed by refusal to acknowledge the deprivation or concealment of the fate or whereabouts, placing the person outside the protection of the law.
- “Order of Battle” is a document made by the military, police, or any law enforcement agency listing names of persons and organizations it perceives as enemies of the State and considers legitimate targets as combatants it could deal with using means allowed by domestic and international law.
- “Victim” refers to the disappeared person and any individual who has suffered harm as a direct result of an enforced or involuntary disappearance.
Unlawful orders and guaranteed access
- An Order of Battle or any similar order from a superior officer or public authority causing enforced or involuntary disappearance is unlawful.
- An unlawful order cannot be invoked as a justifying or exempting circumstance.
- Any person receiving such an order has the right to disobey it.
- Any person deprived of liberty has the absolute right to have immediate access to any form of communication to inform family, relatives, friends, lawyer, or any human rights organization on the person’s whereabouts and condition.
Reporting, certification, and habeas-related access
- Any person who has information about a case of enforced or involuntary disappearance, or learns that a person is a victim, must immediately report in writing the circumstances and whereabouts of the victim to specified government offices and entities, including the DILG, DND, PNP, AFP, NBI, City or Provincial Prosecutor, CHR, any human rights organization, and, if known, the victim’s family, relative, or lawyer (Section 7).
- When a family member, relative, lawyer, representative of a human rights organization, or a media member inquires with any police or military detention center, the PNP or any of its agencies, the AFP or any of its agencies, the NBI, any other government agency or instrumentality, and any hospital or morgue, the member or official must immediately issue a written certification on the presence or absence and/or information on the whereabouts of the disappeared person (Section 8).
- The written certification must state, among others, the date and time of inquiry, details of the inquiry, and the response in a clear and unequivocal manner (Section 8).
- Any inquest or investigating public prosecutor, or any judicial or quasi-judicial official or employee who learns that the person delivered for inquest or preliminary investigation or other judicial process is a victim must immediately disclose the victim’s whereabouts to immediate family, relatives, lawyer/s, or a human rights organization by the most expedient means (Section 9).
- All proceedings concerning issuance of the writs of habeas corpus, amparo, and habeas data must be dispensed with expeditiously, and courts and concerned agencies must give priority to such proceedings (Section 12).
- Any order issued or promulgated pursuant to such writs or their proceedings must be executed and complied with immediately (Section 12).
Register of detainees and inspection of detention
- All persons detained or confined must be placed solely in officially recognized and controlled places of detention or confinement, and an official up-to-date register must be maintained (Section 10).
- Relatives, lawyers, judges, official bodies, and persons with legitimate interest must have free access to the register (Section 10).
- The register must record, among others (Section 10):
- identity/name, description, and address of the person deprived of liberty;
- date, time, location of deprivation of liberty, and identity of the person who made it;
- authority that decided deprivation and the reasons or the crime/offense committed;
- authority controlling the deprivation of liberty;
- place of deprivation; admission date and time; and authority responsible for the place;
- physical, mental, and psychological condition before and after deprivation and the physician’s identity and address;
- date/time of release or transfer, destination, and responsible authority;
- each cell removal event: date/time, reason/purpose, and date/time of return;
- summary of physical, mental, and medical findings after each interrogation;
- names/addresses of persons who visit, and visit and departure date/time;
- if death occurs: identity, circumstances and cause of death, and destination of human remains;
- all other important events and relevant details on treatment.
- Details required under letters (a) to (f) must be entered immediately upon arrest and/or detention (Section 10).
- Information in the register must be reported regularly or upon request to the CHR or any other government agency tasked to monitor and protect human rights and must be made available to the public (Section 10).
- Within six (6) months from effectivity, and as requested by the CHR thereafter, all government agencies must submit to the CHR an updated inventory/list of all officially recognized and controlled detention or confinement facilities and the list of detainees/persons deprived of liberty under their jurisdictions (Section 11).
- The CHR or its duly authorized representatives are mandated and authorized to conduct regular, independent, unannounced, and unrestricted visits or inspections of all places of detention and confinement (Section 13).
Command liability for failures to prevent
- The immediate commanding officer of an AFP unit or the immediate senior official of the PNP and other law enforcement agencies is held liable as a principal for acts committed by subordinates that led, assisted, abetted, or allowed enforced or involuntary disappearance (Section 14).
- If such commanding officer knew, or should have known from circumstances, that enforced or involuntary disappearance was being committed within the area of responsibility and failed to take preventive or coercive action before, during, or immediately after commission, despite authority to prevent or investigate allegations, the commanding officer is also held liable as a principal (Section 14).
Crimes and penalties
- Reclusion perpetua and its accessory penalties are imposed on those who (Section 15(a)):
- directly commit enforced or involuntary disappearance;
- directly force, instigate, encourage, or induce others to commit it;
- cooperate in the act by committing another act without which the disappearance would not have been consummated;
- allow or abet the act when within their power to stop or uncover it;
- cooperate in execution through previous or simultaneous acts.
- Reclusion temporal and its accessory penalties are imposed for enforced or involuntary disappearance committed in the attempted stage as provided for and defined under Article 6 of the Revised Penal Code (Section 15(b)).
- Reclusion temporal and its accessory penalties are also imposed on persons who, with knowledge of the act and without participating as principals or accomplices, take part after commission by (Section 15(c)):
- profiting from or assisting the offender to profit from the effects;
- concealing the act and/or destroying effects or instruments to prevent discovery; or
- harboring, concealing, or assisting the principal/s’ escape provided accessory acts are done with abuse of official functions.
- Prision correctional and its accessory penalties are imposed on persons who defy, ignore, or unduly delay compliance with any order issued or promulgated pursuant to the writs of habeas corpus, amparo, and habeas data or their proceedings (Section 15(d)).
- Arresto mayor and its accessory penalties are imposed on any person who violates Sections 6, 7, 8, 9, and 10 of the Act (Section 15(e)).
Preventive suspension and civil liability
- Government officials and personnel found to be perpetrators of or participants in any manner in enforced or involuntary disappearance may be preventively suspended or summarily dismissed from service, depending on the strength of evidence in the preliminary investigation, or as recommended by the investigating authority (Section 16).
- Enforced or involuntary disappearance makes perpetrators and State agencies that organized, acquiesced in, or tolerated the disappearance liable under civil law (Section 17).
Independent criminal liability and international process
- Criminal liability under the Act is independent of or without prejudice to prosecution and conviction for violations of Republic Act No. 7438, Republic Act No. 9745, and applicable provisions of the Revised Penal Code (Section 18).
- Investigations, trials, and decisions in Philippine courts or bodies for violations of the Act do not prejudice investigations, trials, decisions, or other legal or administrative processes before appropriate international courts or agencies under applicable international human rights and humanitarian law (Section 19).
Exemption from prosecution and continuing offense
- Any offender who volunteers information that leads to the discovery of the victim or the prosecution of the offenders without the victim being found is exempt from criminal and/or civil liability under the Act, provided the offender does not appear to be the most guilty (Section 20).
- Enforced or involuntary disappearance is a continuing offense as long as perpetrators continue to conceal the fate and whereabouts of the disappeared person and the circumstances have not been determined with certainty (Section 21).
Prescription rules and amnesty exclusion
- Prosecution of persons responsible for enforced or involuntary disappearance does not prescribe unless the victim surfaces alive.
- If the victim surfaces alive, the prescriptive period is twenty-five (25) years from the date of reappearance (Section 22).
- Persons charged with and/or guilty of enforced or involuntary disappearance do not benefit from any special amnesty law or similar executive measures that exempt them from penal proceedings or sanctions (Section 23).
State protection and refoulement prohibition
- The State must ensure safety of persons involved in the search, investigation, and prosecution, including victims, their families, complainants, witnesses, legal counsel, and representatives of human rights organizations and media.
- The State must protect them from intimidation or reprisal (Section 24).
- No person shall be expelled, returned, or extradited to another State where there are substantial grounds to believe the person will be in danger of being subjected to enforced or involuntary disappearance (Section 25).
- To determine whether such substantial grounds exist, the Secretary of the Department of Foreign Affairs (DFA) and the Secretary of the Department of Justice (DOJ), in coordination with the CHR Chairperson, must take into account all relevant considerations, including where applicable the existence of a consistent pattern of gross, flagrant, or mass violations of human rights (Section 25).
Compensation, rehabilitation, and restitution
- Victims who surface alive are entitled to monetary compensation, rehabilitation, and restitution of honor and reputation (Section 26).
- Restitution of honor and reputation includes immediate expunging or rectification of any derogatory record, information, or public declaration/statement about the person’s personal circumstances, status, and/or organizational affiliation by appropriate government or private agencies (Section 26).
- Immediate relatives of a victim—within the fourth civil degree of consanguinity or affinity—may claim compensation under Republic Act No. 7309 and other government relief programs (Section 26).
- The indemnification package for victims and immediate relatives within the fourth civil degree of consanguinity or affinity is without prejudice to other legal remedies (Section 26).
- The State, through the CHR, in coordination with the Department of Health, DSWD, and concerned nongovernment organization/s must provide appropriate medical care and rehabilitation free of charge to victims who surfaced alive and/or their immediate relatives within the fourth civil degree of consanguinity or affinity (Section 27).
- A parallel rehabilitation program for persons who committed enforced or involuntary disappearance must be implemented without cost to such offenders (Section 27).
Implementation, appropriations, and rules
- Within thirty (30) days from effectivity, the DOJ, DSWD, CHR, the Families of Victims of Involuntary Disappearance (FIND), and the Families of Desaparecidos for Justice (Desaparecidos), in consultation with other human rights organizations, must jointly promulgate rules and regulations for effective implementation and ensure full dissemination to the public (Section 28).
- The provisions of the Revised Penal Code apply suppletorily insofar as consistent with the Act (Section 29).
- PHP 10,000,000.00 is appropriated for the initial implementation by the CHR.
- Subsequent funds for continuing implementation must be included in the annual General Appropriations Act for the CHR and the DOJ (Section 30).
Separability, repeal, and passing history
- If any section or provision is declared unconstitutional or invalid, the remaining sections and provisions remain in full force and effect (Section 31).
- All inconsistent laws, decrees, executive orders, rules and regulations, and other issuances or parts are repealed, amended, or modified accordingly (Section 32).
- The Act is a consolidation of Senate Bill No. 2817 and House Bill No. 98, finally passed on October 16, 2012.