Implementing Rules of RA 10353 on Enforced Disappearance

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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 condition and the examining physician (without prejudice to R.A. No. 7438); release/transfer details; removal from cell and return; summaries after each interrogation; visitors and departure times; death circumstances and destination of human remains; and all other important events bearing on treatment (Section 11(a)-(l)).

  • Entries required under letters (a) to (f) must be entered immediately upon arrest and/or detention (Section 11).

  • The custodian must regularly report information in the register to CHR Regional Offices within the first 5 working days of the month on a bimonthly basis, and CHR Main Office consolidates through its Assistance and Visitorial Office (AVO) and by other human-rights-monitoring government agencies (Section 11).

  • The register must be made available to the public, and the public covers persons with legitimate interest as contemplated by the section (Section 11).

  • The custodian must determine whether the inquirer is a person with legitimate interest (Section 11).

  • Absence and non-maintenance of the register creates liability of the person with immediate authority and jurisdiction over the detention facility.

  • The immediate custodian or the person who accomplishes entries may also be administratively liable (Section 11).

Inventory of detention facilities and habeas writ priority

  • Within 6 months from the effectivity of the Act, and within the first 5 days of every month at the minimum or as requested by the CHR, all government agencies concerned must submit 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 to the CHR (Section 12).

  • Detention and confinement places include, among others: jails, correctional facilities, lock-up cells, holding areas, safehouses, hospitals/clinics, and similar facilities, including those maintained by the military or law enforcement agencies (Section 12).

  • Centers under DSWD supervision may be inquired into subject to rules of confidentiality (Section 12).

  • Safehouses under DOJ’s Witness Protection Program (WPP) are exempt from the application of Section 11 of the Act (Section 12).

  • All proceedings for the issuance of writs of habeas corpus, amparo, and habeas data must be expeditiously dispensed with under the Rules of Court on Habeas Corpus and the Supreme Court’s Rules on the Writ of Amparo and Habeas Data (Section 13).

  • Courts and other concerned government agencies must give priority to such proceedings (Section 13).

  • Any order issued or promulgated pursuant to these writs or their proceedings must be executed and complied with immediately (Section 13).

CHR visitation, command liability, and criminal penalties

  • 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 or confinement (Section 14).

  • “Places of detention or confinement” include any physical space/area/structure, whether moving or stationary, permanent or temporary where deprivation of liberty is carried out and whose establishment/operation/maintenance is punishable under Section 14(i) of R.A. No. 9745 (Anti-Torture Act of 2009) (Section 14).

  • CHR visits through authorized officers and personnel must be covered by a Mission Order and Identification Card (Section 14).

  • For Quick Reaction Teams (QRT), Rapid Assessment Teams (RAST) or similar fact-finding missions where there is no Mission Order, CHR officials must present their official ID cards (Section 14).

  • The immediate commanding officer of the AFP unit concerned, or the immediate senior official of the PNP and other law enforcement agencies, is held liable as a principal for acts committed that led to, assisted, abetted, or allowed enforced or involuntary disappearance by subordinates (Section 15).

  • If the commanding officer/senior official had knowledge, or owing to the circumstances should have known, that an enforced or involuntary disappearance was being committed, and failed to take preventive or coercive action either before, during, or immediately after commission when having authority to prevent or investigate allegations, liability as principal attaches even if deliberate or due to negligence (Section 15).

  • Penal provisions distinguish penalties by participation stage and accessory conduct (Section 16):

    • Reclusion perpetua and accessory penalties are imposed on persons who:
      1. directly committed the enforced or involuntary disappearance;
      2. directly forced, instigated, encouraged, or induced others;
      3. cooperated by committing another act without which the offense would not have been consummated;
      4. officials who allowed or abetted in consummation when within power to stop or uncover; or
      5. cooperated through previous or simultaneous acts (Section 16(a)(1)-(5)).
    • Reclusion temporal and accessory penalties apply to those who commit the act in the attempted stage as defined under Article 6 of the Revised Penal Code (Section 16(b)).
    • Reclusion temporal and accessory penalties also apply to persons who, with knowledge of the act, did not participate as principals or accomplices, but acted after commission by:
      1. profiting from or assisting offenders to profit;
      2. concealing the act and/or destroying effects or instruments to prevent discovery; or
      3. harboring/concealing/assisting escape, with abuse of official functions (Section 16(c)(1)-(3)).
    • Prision correctional and accessory penalties apply to persons who defy, ignore, or unduly delay compliance with any order duly issued or promulgated pursuant to writs of habeas corpus, amparo, and habeas data, or their respective proceedings (Section 16(d)).
    • Arresto mayor and accessory penalties apply to any person who violates Sections 7, 8, 9, 10, and 11 of the IRR (Section 16(e)).

Preventive suspension, civil liability, independent criminal exposure

  • Government officials and personnel found as perpetrators or participants through a preliminary investigation must be preventively suspended or summarily dismissed depending on the strength of evidence or recommendation by the investigating authority (Section 17).
  • The investigating prosecutor must furnish the respondent’s agency/office and the Office of the Ombudsman copies of the resolution on the case not later than 5 calendar days from release (Section 17).
  • After receipt of the resolution, the Ombudsman or agency concerned may proceed with administrative proceedings using that resolution (Section 17).
  • This IRR does not preclude the victim or family from initiating, or the Ombudsman or concerned agency from conducting, a separate and independent administrative disciplinary proceeding (Section 17).
  • Enforced or involuntary disappearance renders perpetrators and State agencies that organized, acquiesced in, or tolerated the disappearance liable under civil law (Section 18).
  • Criminal liability under the Act is independent of, or without prejudice to, prosecution and conviction for violations of R.A. No. 7438, R.A. No. 9745, and applicable provisions of the Revised Penal Code (Section 19).

Exemptions, continuing offense, prescription limits, amnesty exclusion

  • Investigation, trial, and decision in Philippine courts or bodies for violations of the Act are without prejudice to investigations, trials, decisions, or other processes before appropriate international court or agency under applicable international human rights and humanitarian law (Section 20).
  • An offender who volunteers information leading to discovery of the victim and/or prosecution of 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 21).
  • To qualify, the offender must execute a sworn statement narrating in detail knowledge and participation; responsible persons and their participation, names and offices connected; the whereabouts of the victim; how the offender gained knowledge; and an undertaking to cooperate in investigation and prosecution (Section 21(a)-(e)).
  • If no case or complaint has yet been filed with the prosecutor’s office or courts, the sworn statement must be submitted to any law enforcement agency, the CHR, or any human rights organization for filing a complaint with prosecutors or the Office of the Ombudsman (Section 21).
  • The investigating prosecutor must exempt the offender from charges upon determination that the offender is not the most guilty (Section 21).
  • The offender may avail of benefits or coverage under the DOJ Witness Protection Program (WPP) (Section 21).
  • If a case is pending in court, prosecution must move for discharge from the Information so the offender can testify for the State, or withdraw the Information, or amend the Information if the accused has not yet been arraigned, as applicable (Section 21).
  • Enforced or involuntary disappearance is a continuing offense as long as perpetrators continue concealing the fate and whereabouts of the disappeared person and such circumstances have not been determined with certainty (Section 22).
  • Prosecution for persons responsible does not prescribe unless the victim surfaces alive.
  • If the victim surfaces alive, the prescriptive period is 25 years from the date of reappearance (Section 23).
  • “Reappearance” includes discovery/finding in jail or detention place or hospital by family/CHR/human rights organizations, or the day the victim reunites with family/relatives, or the day the victim reports discovery/reappearance to CHR or human rights organizations with effective cessation of deprivation of liberty (Section 23(a)-(b)).
  • 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 24).

State protection, refoulement ban, compensation, rehabilitation

  • The State, through appropriate agencies, must ensure safety of persons involved in search, investigation, and prosecution—including victims, families, complainants, witnesses, legal counsel, and human rights organization representatives, CHR, NPS, and media—against intimidation or reprisal (Section 25).

  • AFP, NBI, PNP, and other law enforcement agencies must also ensure the safety of investigators, prosecutors, media, and others involved in search, exhumation, investigation, and prosecution (Section 25).

  • Upon filing of a complaint, during trial, and until final disposition, the victim and other persons involved in investigation and prosecution must receive sufficient government protection (Section 25).

  • Protection requests must consider factors including power/position of alleged perpetrators; capacity and access to resources of accused; history of retaliatory action; age, gender, economic, social, political, cultural and other status of victim and involved persons; severity of the act; and geographical distance between victim/involved persons and alleged perpetrators (Section 25(a)-(f)).

  • Victims of enforced disappearance, their families, and witnesses may avail of R.A. No. 6981 (Witness Protection, Security and Benefit Act) and other applicable laws (Section 25).

  • No person may 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 26).

  • The Secretary of Foreign Affairs and the Secretary of Justice, coordinated with the CHR Chairperson, must take into account relevant considerations, including where applicable the existence of a consistent pattern of gross, flagrant, or mass violations of human rights in the requesting State (Section 26).

  • Victims who surface alive are entitled to monetary compensation, rehabilitation, and restitution of honor and reputation (Section 27).

  • Restitution of honor and reputation includes immediate expunging or rectification of derogatory records, information, or public declarations/statements by appropriate government or private agencies regarding the victim’s person, personal circumstances, status, and/or organizational affiliation (Section 27).

  • “Victims” for this section include persons who surface alive and those who continue to be disappeared or are found dead after passage of the Act (Section 27).

  • Immediate relatives within the fourth civil degree of consanguinity or affinity may claim remedies including compensation under R.A. No. 7309 and other government relief programs (Section 27).

  • A victim and his or her immediate family within the fourth civil degree are entitled to compensation (Section 27).

  • While the victim continues to be disappeared or is found dead after effectivity of the Act, the family may file a claim in the order provided under Section 6 of R.A. No. 7309, supplemented by the order of succession under the New Civil Code (Section 27).

  • A prior family claim does not bar the victim’s own claim once the victim reappears (Section 27).

  • When a victim reappears after effectivity and the family has not yet filed a claim, both the victim and the family in the order provided may file for compensation under R.A. No. 7309 (Section 27).

  • Any grant of compensation to any victim shall not be less than PHP 10,000.00 (Section 27).

  • The following records are considered proof of enforced disappearance for purposes of claiming compensation under R.A. No. 7309: NPS Resolution, CHR Resolution, records of the National Historical Institute (NHI) or the Bantayog ng mga Bayani Memorial Center, Writ of Amparo, Habeas Corpus and Habeas Data, or Court Order, and the officially issued roll of victims of enforced or involuntary disappearance by government (Section 27).

  • The six-month period to file a claim under R.A. No. 7309 does not apply due to the offense’s continuing nature (Section 27).

  • For victims who surfaced alive, the six-month period for filing with the Board of Claims (BOC) is reckoned from the date of reappearance as defined in Section 23 of the IRR (Section 27).

  • Victims and immediate families have the right to claim compensation from other financial relief programs and mechanisms available under law, including applying for financial assistance from CHR and other government agencies (Section 27).

  • The State, through CHR in coordination with DOH and DSWD, with partnership with concerned NGOs, must provide appropriate medical care and rehabilitation free of charge for victims who surfaced alive and/or immediate relatives within the fourth civil degree (Section 28).

  • CHR must convene DSWD, DOH, and NGOs to formulate a comprehensive rehabilitation program covering psychosocial services, medical care, and livelihood services (Section 28).

  • The comprehensive rehabilitation program must be developed within 6 months from effectivity of the IRR (Section 28).

  • The development of the rehabilitation plan must ensure gender-responsive, rights-based, and culturally-sensitive services and interventions for victims and immediate families (Section 28).

  • A parallel rehabilitation program for persons who committed enforced or involuntary disappearance must be implemented without cost to such offenders to attain restorative justice (Section 28).

Implementation, suppletory rules, separability, and repeal

  • Upon effectivity of the IRR, DOJ, DSWD, CHR, FIND, and Desaparecidos must ensure full dissemination of the Act and this IRR to concerned agencies and the public (Section 29).
  • The Revised Penal Code provisions apply suppletorily insofar as they are consistent with the Act (Section 30).
  • If any section or provision of the Act is declared unconstitutional or invalid, the remaining sections or provisions remain in full force and effect (Section 31).
  • All laws, decrees, executive orders, rules and regulations, and other issuances or parts inconsistent with the Act are repealed, amended, or modified accordingly (Section 32).

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