The Philippines has a long history of enforced disappearances, numbering in the two thousands since the dictatorship of Ferdinand Marcos when martial law was enacted in the 1970s, according to The New York Times. However, in December 2012, President Benigno S. Aquino III approved the Republic Act 10353, known as the “Anti-Enforced or Involuntary Disappearance Act of 2012,” which was passed by the Philippine Congress in October. This Act targets state agents and officials who confined or arrested individuals without proper process and detained those individuals outside the law’s protection.
The Act defines enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State” or by those “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.” The Act defines “enforced disappearance” with the same wording as the United Nations International Convention for the Protection of All Persons from Enforced Disappearance, which the Philippines has neither signed, ratified, nor is a state party to.
Those forced into disappearance, usually political dissidents, are often subject to torture and abuse at the hands of state officials and are outside the realm of the law’s protection since their detainment is not publicly registered. This treatment conflicts with the International Covenant on Civil and Political Rights, which the Philippines ratified in 1986, under Article 9, the right to not be subject to arbitrary arrest and detention. Abuse of this nature also implicates the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the Philippines acceded to in 1986.
In an effort to build upon the substantial decrease of enforced disappearances since the Marcos regime, when many political opponents were arbitrarily arrested and tortured, the new law seeks to prevent future enforced disappearances. The new law will prohibit all disappearances and allows for no suspension of that principle. Specifically, if a superior officer orders a subordinate to disappear someone, the superior officer can be penalized and the subordinate officer has the right to defy the order. According to the law, there must be up-to-date registration of all detained persons and detention facilities. All detained individuals also have the right to communicate their whereabouts to others. To cut off a mechanism of enforced disappearances, the law prohibits “orders of battle”—a document listing all the supposed enemies of the State.
Furthermore, all those who “directly committed,” “encouraged,” “cooperated,” “allowed…or abetted” the act of enforced disappearance will be subject to a penalty of reclusion perpetua—essentially life imprisonment. Individuals who had knowledge that the act of enforced disappearance transpired, without actually having participated in the act itself, face imprisonment as well. The individuals who have knowledge of the occurrence of such acts of enforced disappearance have a duty to report the act to the Department of the Interior and Local Government. Victims of enforced disappearance and their relatives are entitled to monetary compensation and “restitution of honor and reputation.” Those penalized for committing this act are allowed no amnesty.
According to Section 18 of the law, a trial and decision for violating this act in a Filipino court is independent of the trial and decision of an international court using international human rights laws. Although the Act is laudable and provides progressive change, the Philippines has still not ratified the International Convention for the Protection of All Persons from Enforced Disappearance, which was adopted by the United Nations General Assembly in 2006 and entered into force in 2010. The Philippines could comprehensively tackle the issue of enforced disappearance by acceding to this Convention since its Article 26 allows for the Committee on Enforced Disappearances to monitor such disappearances within states. Without a mechanism to monitor disappearances and enforce the new act, there is no outside oversight to ensure that disappearances do not occur.