Title
Implementing Rules of RA 10353 on Enforced Disappearance
Law
Doj
Decision Date
Feb 12, 2013
The Philippine Supreme Court implements guidelines for the verification of advance Court En Banc resolutions and orders to ensure accuracy, integrity, and credibility in its decisions, with the Chief Justice overseeing the process and a two-day time frame for verification by the Members-in-Charge. Failure to comply with the guidelines may result in delays or inaccuracies in the resolutions and orders.
guidelines
verification process
orders
A

Policy, human-rights mandate, construction

  • The State policy is to value the dignity of every human person (Section 2(a)).
  • The State must guarantee full respect for human rights by prioritizing measures that uphold and enhance the right to life, liberty and security, and prevent enforced or involuntary disappearances (Section 2(b)).
  • The State must prohibit secret detention places, solitary confinement, incommunicado, or similar forms of detention (Section 2(c)).
  • The State must provide penal and civil sanctions for violations of rights and obligations under the Act (Section 2(d)).
  • The State must provide restitution, compensation, and rehabilitation for victims and their families, especially in relation to torture, force, violence, threats, intimidation, or other means that vitiate free will (Section 2(e)).
  • The State must adhere to the absolute condemnation of human rights violations under the 1987 Philippine Constitution and international human rights instruments including UDHR, ICCPR, ICESCR, CAT, CRC, CEDAW, the UN Declaration on the Protection of all Persons from Enforced Disappearance, and other relevant instruments (Section 2(f)).
  • The IRR must be interpreted to achieve the objectives of the Act, and doubts are resolved in favor of victims (Section 3).

Core definitions and coverage elements

  • “Agents of the State” are persons who, by direct provision of law, popular election, or appointment by competent authority, perform public functions or public duties as employees, agents, or subordinate officials (Section 4(a)).
  • “Enforced or involuntary disappearance” is an offense with all these elements:
    1. arrest, detention, abduction, or other deprivation of liberty;
    2. committed by agents of the State or by persons acting with authorization, support, or acquiescence of the State; and
    3. followed by refusal to acknowledge deprivation of liberty or concealment of the fate or whereabouts, placing the victim outside protection of the law (Section 4(b)).
  • “Order of Battle” refers to documents by the military, police, or any law enforcement agency listing names of persons and organizations perceived as enemies of the State and considered legitimate targets as combatants, using means allowed by domestic laws (including the Bill of Rights, R.A. No. 7438, and R.A. No. 9851) and international law (Section 4(c)).
  • “Victim” refers to the disappeared person and any individual who suffered harm as a direct result of an enforced or involuntary disappearance (Section 4(d)).
    • For restitution under Section 26 of the Act, “victim” refers to the disappeared person who surfaced alive, found dead, or still missing.
    • For compensation and rehabilitation under Sections 26 and 27 of the Act, “victim” includes immediate relatives within the fourth civil degree of consanguinity and affinity.
  • “Officially recognized and controlled places of detention or confinement” are facilities created by law, ordinances, department orders, administrative issuances, or judicial orders where deprived persons are held (Section 4(e)).

Non-suspension and unlawful “order of battle”

  • The right against enforced or involuntary disappearance and safeguards for its prevention cannot be suspended under any circumstance, including political instability, threat of war, state of war, or other public emergencies (Section 5).
  • An “Order of Battle” or similar order causing enforced or involuntary disappearance is unlawful.
  • Such an order cannot be invoked as a justifying or exempting circumstance.
  • Any person receiving such an order has the right to disobey it (Section 6).

Immediate rights, reporting duties, certifications

  • Every person deprived of liberty has an absolute right to immediate access to effective means of communication to inform family, relative, friend, lawyer, CHR, or a human rights organization of whereabouts and condition (Section 7).

  • In warrantless arrest cases, the right to access communication attaches immediately upon actual deprivation of liberty, covering taking, transit, and detention (Section 7).

  • The right of communication operates without prejudice to custodial-investigation rights under R.A. No. 7438 (Section 7).

  • Any person who has or learns information about an incident or that a person is a victim of enforced or involuntary disappearance must immediately report in writing the circumstances and whereabouts to one or more of the following:

    • the victim’s family, relative, or lawyer (if known);
    • any human rights organization;
    • the CHR main office or concerned regional/sub-office/desk office;
    • DOJ, NPS, or the nearest prosecution office;
    • NBI or its nearest local office;
    • any office/bureau/division/unit of DILG;
    • any office/bureau/division/unit of DND;
    • any office/detachment/division of PNP; or
    • any unit of the AFP (Section 8(a)-(i)).

  • The report must be based on the personal knowledge of the reporter (Section 8).

  • The written report must include, among others, a sworn statement, signed letter, signed memorandum/incident report/blotter, SMS, e-mail, or social media (Section 8).

  • Reports sent through SMS, e-mail, or social media must be followed by a written statement duly signed by the reporter and filed within a reasonable period of time (Section 8).

  • When a family member, relative, lawyer, CHR representative, human rights organization representative, or media member inquires with officials of detention centers/facilities, police, military units, NBI or government agencies, or any hospital or morgue, the inquired member or official must immediately issue a written certification on presence/absence and/or whereabouts, stating at least the date and time of inquiry, inquiry details, and response in clear and unequivocal manner (Section 9).

  • DILG, DOJ, DND, DOH, PDEA, and NAPOLCOM must adopt mechanisms within 30 days from the effectivity of the IRR to ensure availability of an officer to issue the certifications at any time (Section 9).

  • The certification must state:

    • the name of the inquiring person/organization/institution;
    • the date and time of inquiry;
    • inquiry details, including identity and physical features enabling identification;
    • purpose of inquiry;
    • response, including whether the person is within the facility or its immediate premises;
    • previous detention/transfer/release records if available; and
    • commitment to notify the inquirer by the most expedient available means if the person is later brought into the facility after inquiry and response (Section 9).

  • Certification timing rules apply based on where inquiry is made (Section 9):

    • PNP: immediate but not beyond 4 hours when inquiry is directly before the head of the detention facility.
    • BJMP/local government jails: immediate but not beyond 4 hours under the same direct-to-facility-head condition.
    • PNP provincial office / BJMP: within 5 calendar days; Regional and National Headquarters: within 7 calendar days.
    • AFP: immediate within 24 hours by the Commanding Officer of the AFP unit being inquired with. For higher/lower command levels, issuance is within the specified periods: 2 calendar days (PA battalions/equivalents), 3 (PA brigades/equivalents), 4 (PA divisions/equivalents), 5 (Unified Commands), 7 (General Headquarters and Major Services), or 3 (other AFP commands/units/offices not defined above).
    • Hospitals/medical clinics/morgues: immediate but not beyond 4 hours.
    • Other detention facilities: immediate; if inquiry is at provincial/regional/national levels, the corresponding 5 or 7 calendar days rule applies.

Prosecutor/judicial duties and access to detention registers

  • Inquest/investigating public prosecutors and any judicial or quasi-judicial official or employee who learns that the person delivered for inquest, preliminary investigation, or other judicial/quasi-judicial process is a victim of enforced or involuntary disappearance must immediately disclose the probable victim’s whereabouts to immediate family, relatives, lawyers, CHR, or human rights organizations (including FIND and Desaparecidos) through the most expedient means (Section 10).

  • They must inquire whether the respondent’s immediate family/relatives/lawyer/CHR/human rights organizations have been informed of the respondent’s arrest and/or detention, including whereabouts, and must obtain communication details (names, contact details, and time) (Section 10).

  • If the respondent is accompanied by family/relatives/lawyer/other persons, they must likewise verify the time and particulars of communication with the respondent (Section 10).

  • If the prosecutor/official finds probable victim status, disclosure must be made immediately through the most expedient means including telephone, SMS, or e-mail (Section 10).

  • The prosecutor/official must include in minutes of proceedings the facts and details of communication to the respondent’s family, relatives, CHR, and/or human rights organizations, and require the respondent, companions, and arresting officers to sign the minutes (Section 10).

  • The Judiciary, Ombudsman, DOJ, and other agencies exercising quasi-judicial functions must ensure that an up-to-date list of contact details of CHR offices, FIND, Desaparecidos, and other human rights organizations is available at all times to prosecutors and judicial/quasi-judicial officials within their jurisdiction (Section 10).

  • All persons detained or confined must be placed solely in officially recognized and controlled places of detention or confinement, with an official up-to-date register maintained for persons so detained (Section 11).

  • Family members, relatives, lawyers, judges, official bodies, CHR, human rights organizations, and all persons with legitimate interest must have free access to the register (Section 11).

  • The register must record, among others: identity and details of the deprived person; date/time/location of deprivation and who made it; authority deciding and reasons for deprivation; authority controlling deprivation; admission details; records of physical/mental/psychological con

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