Freedom from Enforced Disappearance

Freedom from Enforced Disappearance: A State’s Obligation under ICCPR

A research paper on International Human Rights Law for the partial fulfillment of the course, Special Issues in International Law under Atty. Maria Cristina Gimenez, Professor in PUP College of Law.

Submitted by:

Jose Parcon

JD 2-2

 

Freedom from Enforced Disappearance: A State’s Obligation   under ICCPR

Introduction

The right to life, liberty and security of the person is one of the categories under human rights.[1] Justice Coquia elucidates that these rights represent the core of fundamental rights, which relate to the right to physical and personal integrity, consistent with human dignity. They include the right to protection against political and other extrajudicial killings, the disappearances of persons, and torture and other cruel, inhuman or degrading treatment or punishment.

The Philippine Commission on Human Rights defines human rights as the supreme, inherent and inalienable rights to life, dignity and self-development. It is the essence of these rights that makes man human.[2]

The United Nations defined human rights as those rights, which are inherent in our nature, and without which, we cannot live as human beings.

Justice Coquia explained that human rights are inherent because they are not granted by any person or authority. They do not need any event for their existence. They are distinguished from constitutional or legal rights, which are provided in state constitutions or legislative bodies. Some examples of inherent rights are the right to life and the right to dignity as a human being.

Hand in hand with human rights, which individuals must enjoy, is the right of the state to national security. Thus, some individual rights are not absolute or are derogable.[3] Justice Coquia stated that derogable or relative rights might be suspended or restricted or limited on the circumstances, which call for the preservation of social life. Example, the right to freely move may be limited through the imposition of curfews.

For the restrictions on certain individual rights to be valid, it must satisfy three requirements, namely: (1) it is provided by law which is made known to every citizen; (2) there is state of emergency which necessitates the urgent preservation of the public good, public safety, and public moral; and (3) it does not exceed what is strictly necessary to achieve the purpose.

Non-derogable or absolute rights are those that cannot be suspended nor taken away nor restricted even in extreme emergency and even if the government invokes national security. Among them are the right to be deprived of life arbitrarily, the right of freedom from torture, the right to be recognized as a person, and the right to freedom of thought or conscience.[4]

Human rights are as old as human society itself. Originally known as “Rights of Man,” they are asserted by the citizens against tyrannical governments. They arose from the struggle of man against injustices of despotic rulers. From the tyrannical rulers of the ancient Greece to the royal autocracy of kings and princes of the Middle Ages men began to resist injustices they long suffered.[5]

As a whole, the Filipinos are the survivors of human rights violations from the past and up to the present. History will tell us the ordeals that Filipinos have to go through during the Spanish era, the Japanese occupation, and the Martial Law. And up to now, we see political detainees languishing in jail for trumped up charges. And it is quite ironic since the Philippines have always been a signatory to numerous treaties dealing with human rights since 1925.[6]

Enforced disappearance or desaparecido is a violation of a man’s right to liberty.[7]

The United Nations Commission on Human Rights defines enforced disappearance as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons 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 place such a person outside the protection of law.

In an academic forum wherein Bayan Muna Representative Colmenares was the resource person, the crime of enforced disappearance has four elements:

-       Any forms of arrest, detention, deprivation of liberty;

-       Committed by the State or any of its agents;

-       To take the person outside the protection of the law;

-       Continues refusal of the government to acknowledge the fate or whereabouts of the disappeared person.[8]

As a student of Law, it is of our interest to study this aspect of enforced disappearance as a crime committed with impunity against the right of ordinary citizens. It is a basic human right to liberty violated by the State against its citizen of whom it has sworn to protect. The freedom from enforced disappearance is a non-derogable or absolute right that cannot be suspended nor taken away nor restricted even in extreme emergency and even if the government invokes national security. For the right against enforced disappearance is inherent and fundamental. That without this right, life and dignity of man will be meaningless.[9]

Background

Justice Coquia in his book “Human Rights” have said that there is still no definite jurisprudence on human rights in the Philippines except the court decisions dealing on constitutional guarantees of Civil and Political Rights of the Philippine Constitution. There are no specific procedural rules to effectively implement the international instruments on human rights.[10]

The inherent weakness in the enforcement system of human rights in the Philippines can be attributed to the provisions in the Philippine Constitution. The Commission on Human Rights (CHR), established as a constitutional independent body to pursue the state policy on the promotion and protection of human rights has been empowered to investigate only all forms of human rights violations involving civil and political rights but not economic rights.[11]

Several proposals have been made to Congress to grant prosecutory power or to convert it to a quasi-judicial body. The suggested legislative measures may not be feasible, as it requires amendments to the Philippine Constitution.[12]

Moreover, a grant of prosecutory functions to the CHR may run counter to the prosecutory powers of Department of Justice and the Ombudsman who have the exclusive jurisdiction to prosecute criminal offenses.[13]

Sarmiento, in his book “Human Rights Law, Human Rights Culture” have said that problems and difficulties will be there and they can come from sources like abuses of authoritarian leaders, inequalities of political and economic powers, practices of multi-national corporations and policies of global financial institutions.[14]

In a more optimistic note, he added that the battle for human rights and for human disquity is not yet fully won. A big boost to winning the battle for human rights will be the active promotion of human rights education towards developing a robust awareness of human rights and human responsibilities and actively living these rights and responsibilities in everyday life.[15]

The University of Michigan, in its website, have said that enforced disappearance was first recognized as a human rights problem in the 1970s, when human rights lawyers in Chile noted that some of the prisoners they were representing had dropped from sight and contact even though ostensibly they continued to be held in custody by Chilean security forces.[16]

Disappearance is commonly associated with the Latin American dirty wars of the 1970s and 1980s – and especially with the countries of Argentina and Chile – but the phenomenon is not limited to that geographic region or that unique period of time.[17] Guatemalan authorities “disappeared” political opponents in the 1960s, and such geographically diverse countries as Philippines, El Salvador, Sri Lanka, and Syria have engaged in the practice.[18]

Table 1

Victims of Enforced or Involuntary Disappearance

under the Arroyo Government [19]

Annual Totals: January 21, 2001 to June 30, 2010

Year    Total   Organized   Women

2001      8              1                1

2002    10              3                2

2003    11              2                1

2004    23            10                5

2005    32              6                0

2006    78            25              15

2007    30            14                5

2008     9               5                1

2009     4               2                1

2010     1               0                0

(June 30)

Total   206           68               31

TABLE 2: Violations of Civil & Political Rights

under the Noynoy Aquino Government [20]

(July 2010 to June 2014)

Violation                               No. of victims

Extrajudicial Killing                          204

Enforced Disappearance                  21

Torture                                            99

Rape                                                3

Frustrated Extrajudicial Killing          207

Illegal Arrest without Detention        272

Illegal Arrest and Detention             664

Illegal Search and Seizure              270

Physical Assault and Injury             395

Demolition                                 17,145

Violation of Domicile                       504

Destruction of Property               12,694

Divestment of Property                   355

Forced Evacuation                     39,800

Threat/Harassment/Intimidation  65,712

Indiscriminate Firing                      9,932

Forced/Fake Surrender                    57

Forced Labor/Involuntary

Servitude                                      172

Use of Civilians in Police and/or

Military Operations as Guides

and/or Shield                                    549

Use of Schools, Medical,

Religious and Other Public

Places for Military Purpose        141,490

Restriction or Violent Dispersal

of Mass Actions, Public

Assemblies and Gatherings           9,929

Justice Magdangal de Leon of the Court of Appeals, wrote that one of the most pressing issues being faced during the Arroyo administration was the increasing number of so-called extra-judicial killings and enforced disappearances committed predominately against those associated with leftist groups, and local journalist, allegedly committed by the military.[21]

The inquiries and hearings, conducted by the court, have led to a common observation: that despite government efforts to investigate the spate of killings and punish the perpetrators, none of the cases that have been so far filed has resulted in conviction.[22]

It was in the Court of Appeals where petition for habeas corpus was filed against Maj. Gen. Jovito Palparan and other military officials. The petition concerns the alleged abduction of Sherlyn Cadapan, Karen Empeno and Manuel Merino, sometime in June 2006, in Hagonoy, Bulacan.[23]

Cadapan and Empeno, alleged members of the Kilusang Magbubukid ng Pilipinas and Alyansa ng mga Magbubukid ng Bulacan, and Merino, a neighbor, were supposedly abducted by armed men wearing bonnets aboard a stainless jeep and taken to the Mercado, Hagonoy police detachment.[24]

Upon inquiry, however, by the families of the women and by members of the local chapter of KARAPATAN, a human rights group, the respondent military officials denied that they have custody of the missing persons.

The Supreme Court issued the writ of habeas corpus, returnable to the Presiding Justice of Court of Appeals, with the instruction that the case be raffled immediately among its members. 

Respondent military officials denying participation in the alleged abduction and custody of the said missing persons returned the writ.[25] After conducting a series of hearings, the Eleventh Division of Court of Appeals, dismissed the petition for lack of evidence.[26]

The Court’s ruling in the Cadapan and Ancheta cases only underscore the difficulties in securing convictions in cases involving extra-judicial killings and enforced disappearances due to insufficient evidence.[27] More often than not, there are no eyewitnesses, or if there are any, they are reluctant to testify.[28]

This situation places our courts in an unenviable position – that of dismissing petitions and complaints due to lack or insufficiency of the petitioner’s evidence, even though respondent’s rebuttal evidence is in itself weak and full of contradictions, as was noted in the Cadapan case.[29]

In its 2012 Report, Amnesty International wrote that in the Philippines, reports of torture, extrajudicial executions and enforced disappearance persisted with hundreds of past cases remaining unresolved.[30]

According to figures released in August 2012 by Families of Victims of Involuntary Disappearance, the average number of enforced disappearances per year had barely been changed since the overthrow of Ferdinand Marcos in 1986. 

There were 875 documented cases during his 21-year rule, compared with 945 in the 25 years since.[31]

In 2013, enforced disappearances of activists, suspected insurgents, and suspected criminals continued to be reported.[32]

In January, after flying to Manila from Zamboanga City, famers Najir Ahung, Rasbi Kasaran and Yusoph Mohammad were apprehended at the airport, allegedly by state forces, and were not seen since. 

The authorities refused to provide lawyers representing the missing men with closed-circuit videotapes or a list of security forces on duty at the airport at the time of their disappearance.[33]

Enforced disappearances persist in many countries all over the world, having been an ubiquitous feature of the second half of the twentieth century since they were committed in large scale in Nazi-occupied Europe. 

The Philippines is no exception. Several disappearances have already been recorded the recent years with the Jonas Burgos case as the most publicized.[34]

Every enforced disappearance violates various human rights including, but not limited to: the right to liberty and security of persons, the right to dignity of a person, the right not to be discriminated upon, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, the right to effective remedies under the law, the right to due process and fair trial, the right to a family life and ultimately, the right to life if the person disappeared is eventually killed or continues to elude knowledge of the victims true fate.[35]

The International Convention for the Protection of All Persons from Enforced Disappearance (Convention Against Enforced Disappearance or ICED) was adopted by the UN General Assembly on 20 December 2006. It is a culmination of the years of hard work by associations of relatives of victims, non-governmental organizations such as the International Coalition Against Enforced Disappearances and key governments.[36]

The Convention Against Enforced Disappearance is one of the strongest human rights treaties ever adopted by the UN. Key to this is the definition of enforced disappearance, universal jurisdiction, reparations and implementation.[37]

ICED provisions introduce important new standards – such as the right to know the truth about the fate of a disappeared person. The Convention aims at preventing enforced disappearances, establishing the truth when this crime occurs, punishing the perpetrators and providing reparations to the victims and their families.[38]

But the Convention alone will not stamp out enforced disappearance; to be truly effective it must be ratified by all states, and government must enact effective legislation to implement it – in accordance with their international obligations.[39]

Hence, the efforts of the past Congress as well as those of other relevant stakeholders to ensure the ‘right not to be disappeared’ even before the Convention was adopted by the United Nations are very noble, commendable and relevant.[40]

Though the Philippines have yet to sign and ratify the International Convention on the Protection of All Persons from Enforced Disappearance (ICED)[41], a law was enacted to address the problem.

In October 2013, Congress passed the Anti-Enforced or Involuntary Disappearance Bill, after more than two decades of lobbying from civil society. The bill, which criminalizes enforced disappearance and prescribes penalties up to reclusion perpetua of imprisonment have now become a law.

R.A. No.10353 otherwise known as the “Anti-Enforced or Involuntary Disappearance Act of 2012 provides:

      The State values the dignity of every human person and guarantees full respect for human rights for which highest priority shall be given to the enactment of measures for the enhancement of the right of all people to human dignity, the prohibition against secret detention places, solitary confinement, incommunicado, or other similar forms of detention, the provision for penal and civil sanctions for such violations, and compensation and rehabilitation for the victims and their families, particularly with respect to the use of torture, force, violence, threat, intimidation or any other means which vitiate the free will of persons abducted, arrested, detained, disappeared or otherwise removed from the effective protection of the law. (Sec.3, RA 10353).

The salient features of the Anti-Enforced Disappearance Law (RA 10353) are the following:

a.    The immediate commanding officer of the unit concerned of the AFP or the immediate senior official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of enforced disappearance, when he or she has the authority to prevent or investigate allegations of enforced disappearance but failed to prevent or investigate such allegations, whether deliberately or due to negligence;

b.    The statutory penalty of imprisonment ranges from arresto mayor to reclusion perpetua;

c.     The criminal liability of the offender under this law shall be independent of or without prejudice to the prosecution and conviction of other special penal laws and applicable provisions of the Revised Penal Code, including investigation or trials before any appropriate international court;

d.    An act constituting enforced disappearance shall be considered a continuing offense as long as the perpetrators continue to conceal the fate and whereabouts of the disappeared person;

e.    The prosecution of persons responsible for enforced disappearance shall not prescribe unless the victim surfaces alive. In which case, the prescriptive period shall be twenty-five (25) years from the date of such reappearance;

f.      Persons who are charged with or guilty of the crime prescribe in RA 10353 shall not benefit from any amnesty law or other similar executive measures that shall exempt them from any penal proceedings or sanctions.

Statement of the Problem

Enforced disappearance has been a serious problem facing our country’s human rights record for decades.

Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) provides: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

The Philippines is a signatory of the International Covenant on Civil and Political Rights (ICCPR). Fr. Bernas in citing the work of Vratislav Pechota wrote - …at the core of an international covenant lies a meeting of minds of the contracting parties on the specific duties and obligations they intend to assume and the agreement that the undertakings must be effectively performed. The vinculum juris created by a covenant places a duty on the contracting parties to bring their laws and practices into accord with the accepted international obligations and not to introduce new laws or practice which would be at variance with such obligations.

Since the International Covenant on Civil and Political Rights partakes of a generally accepted principle of international law,[42] the Philippines should comply with the aforesaid provision. Sec. 2, Art. II of the Philippine Constitution provides, viz:

"The Philippines renounces war as an instrument of national policy adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace and equality - justice, freedom, cooperation and amity with all nations."

Several laws and Rules of Procedure are also in place to protect citizens against enforced disappearances. Perhaps the most well known are the Writ of Habeas Corpus and the Writ of Amparo. Little is known about RA 10353, the law against enforced disappearance.

If any agents of the State could just commit the crime of enforced disappearance, with impunity against an ordinary citizen, how can we earn the respect we badly need from the international community?

Analysis

Our 1987 Constitution have vested the power to the Supreme Court to promulgate rules concerning the protection and enforcement of constitutional rights, among others. We have the rules for the issuance of writs for the protection of life and liberty.

The law penalizing the commission of enforced disappearance, RA 10353, is a well-crafted law.

But we have yet to see the results of this new law. Nor have we seen a significant improvement on our fight against extra-judicial killings and enforced disappearances.

The court for lack or insufficient evidence against respondents dismissed petitions for habeas corpus cases. This is the kind of situation that breeds the culture of impunity. The perpetrator, knowing that he can get away with the crime, continues to commit the dastardly act.

The issue of human rights cases being dismissed for lack of evidence is unfortunate knowing that we have an independent constitutional body such as the Commission on Human Rights, which is tasked to investigate all forms of human rights violations involving civil and political rights.

People wonder whether the Commission on Human Rights is up to its task of investigation and data gathering.

Our Congress has crafted a law to fight against enforced disappearance. Our courts have done its part to hear and receive petitions asking for remedies against enforced disappearance. 

In fact, during Chief Justice Puno’s tenure, he ordered the Office of the Court Administrator to provide the Court with an inventory of extra-judicial killings and enforced disappearance cases pending in all courts and issued specific instructions to prioritize these cases with dispatch.

But the cases, without the sufficient evidence to hold the respondents liable, will have to be dismissed by the court. The complainant who alleges violation of our laws must rely on the strength of his own evidence and not on the weakness of the defense. This is how justice in our court operates.

Here we can see where the weakest link is, the Commission on Human Rights (CHR) and the prosecuting agencies of the government have failed miserably in performing their task of investigating and prosecuting offenses of human rights law in general and enforced disappearance in particular.

Take for example in the case of Jonas Joseph Burgos.

Jonas Burgos has not been seen since April 28, 2007 when gunmen dragged him from Hapag Kainan restaurant in Ever Gotesco Mall along Commonwealth Avenue, Quezon City, to a waiting Toyota Revo whose license plate was traced to another vehicle that was impounded last year at the 56th Infantry Battalion camp in Bulacan.[43] The CHR, in its official website, has this to say:[44]

ENFORCED DISAPPEARANCE OF JONAS JOSEPH BURGOS

The Commission, in conducting the inquiry, had two primordial objectives: first, to locate Joseph Jonas Burgos, and second, to call out all the concerned agencies of the Government to help the Commission on Human Rights in this undertaking. 

In this regard, the Commission issued a subpoena duces tecum and ad testificandum, dated 31 May 2007, to Major Gen. Delfin R. Bangit, Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), ordering him to appear and testify before the Commission on 05 June 2007, 9:00 AM; and to bring all the necessary documents including reports on the action taken by his office in connection with the alleged disappearance. 

The ISAFP, one of the principal intelligence networks of the Government, has all the intelligence capability and resources to locate Jonas Burgos.

Gen. Bangit failed to appear on the date abovementioned. However, on 08 June 2007, he came to the Commission for a courtesy call, and apologized for his absence in the June 05 hearing; and confirmed his presence for the next hearing.

 To give the Burgos family the opportunity to observe the proceedings and participate therein, the Commission, thru Commissioner Dominador N. Calamba II, sent a letter, dated June 13, 2007, to Mrs. Editha Burgos. In the same letter, the Commission invited her for a meeting with the Commissioners on June 15, 2007, the date of the inquiry.

On 15 June 2007, Gen. Bangit and Mrs. Burgos appeared before the Commission for the scheduled inquiry, but the latter refused to testify. During the inquiry, Atty. Ricardo Fernandez, counsel of Mrs. Burgos, asserted that her client would testify only after the military officers shall have given their testimonies. Consequently, Mrs. Burgos did not take the witness stand. On the other hand, Gen. Bangit requested a meeting with Mrs. Burgos, but the latter refused.

The Commission wants the public and the Burgos family to know that the closure of the public inquiry does not necessarily mean the closure of its investigation to locate Jonas.

 It is only the proceedings to locate Jonas Burgos (public inquiry) that is terminated. It is in this respect that we call, once again, the Intelligence Service of the Armed Forces of the Philippines and the Philippine National Police to locate Jonas Burgos, despite Mrs. Editha Burgos’ non-cooperation.

WHEREFORE, in view of the foregoing, the Commission resolves, as it is hereby RESOLVED, that the proceedings in the Commission be temporarily closed.

Issued this 11 th day of September 2007, Quezon City, Philippines.

As to why the CHR has failed to take the testimony of Gen. Bangit, then ISAFP Chief, on the disappearance of Burgos and to use all lawful means necessary to enlist the active participation of the ISAFP Chief to locate Burgos is highly questionable. The said failure betrays the CHR’s mandate in the 1987 Constitution, which provides:

Section 18.The Commission on Human Rights shall have the following powers and functions:

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; xxxx

Why does the CHR has to wait for the testimony of the mother of Jonas Burgos, before they proceed to take the testimony of the ISAFP chief, when it was a common, public knowledge that a person was abducted by armed men and the victim’s whereabouts remained unknown?

In another case, the abduction and disappearance of Muhamadiya Hamja, a suspected member of Abu Sayyaf residing in Taguig, after thorough investigation the CHR recommended, on December 2009, for the prosecution of several PNP and Naval Intelligence Officers.[45] Sad to say, all those officers involved are still in the active service.

Recommendation/Conclusion

Various agencies in the government have been created to perform a specific task. Like a car’s engine, when every part is functioning well, the car will run smooth and safe.

The most convenient excuse for not performing their task at par with any decent country is the lack of funding or resources. While it is true that funding or lack thereof limits the capacity of an agency to perform, we are not short of imagination and resourcefulness.

It is about time that the Commission on Human Rights (CHR) rolls up their sleeves and works closely with the DOJ and the Ombudsman to enhance and complement their investigatory capability. After all, they are working for one and the same country.

The CHR may also accredit and work hand in hand with well-organized NGOs and private organizations to expand their network for data gathering of any alleged human rights violation.

In short, the CHR may have to reach out vigorously to various government agencies and to the private sector for it to become an effective watchdog of human rights. The constitutional body itself and the people behind it must be able to show their leadership skills in rallying an active people participation to their worthy cause.

But the CHR may not even be at par with its huge mandate when it cannot even provide to our researcher the simple annual statistics of reported cases of enforced disappearance due to its bureaucratic procedures.

The CHR officials may have to spend more time outside their four-cornered office walls. Albeit it would be quite uncomfortable to sweat under the heat of the sun and brave all kinds of harmful elements outside the comfort of a well- designed and well-ventilated office, nowadays. But the senior officials may have to engage themselves at the grass roots level and see the actual and real problems first hand. This was the way that the late Sec. Juan Flavier worked for the DOH programs to be effective.

Being an independent constitutional body does not mean that you will have to isolate yourselves in policy making and in the implementation of your programs. After all, we are serving the same constituents – the Filipino people.

Conformably with its constitutional mandate, the Commission on Human Rights recommends the following measures and remedies to obviate extra-judicial executions and disappearance:[46]

          Judicial Remedies

When petitions for habeas corpus are filed, courts must find the respondents (military or police) guilty of contempt for failing to produce the bodies of the disappeared and ordering them imprisoned until they do so. Rule 71, Sec. 8 of the Rules of Court of the Philippines has to be strictly implemented. The rule provides: "When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it."

Court must adopt the following rules as ration decidendi in order to become precedents that may defer the practice of disappearances;

a) When respondents allege, in their Return to a writ of habeas corpus that the     person to     whom the writ was issued have been released, the burden of proof     of release rests upon     respondents and can be discharged only by clear and     convincing evidence;
b) In such cases, the following circumstances raise the inference that the detained     persons     were not released. 

Failure of the police or military authorities to     release them to their     families and when they have no families to a responsible     civilian;

 failure of the police or     military authorities to produce an appropriate     order of release from a Court; failure of     the military or police authorities to     show an order of release immediately upon demand     therefore stating clearly     the name of the detainee, the exact date and time of his release, and printed     name and signature of the person who effected his release; 

failure of the     police     or military authorities to bring the detainees to the proper judicial authority within     the period s fixed by laws; 

the detainees supposedly released have not     communicated     with their families within a reasonable period after their release     and that their families     despite diligent search, have not been able to find them;


Review and change court decisions that provide a climate favorable to political killings; 


Put up a human rights academy for judges and lawyers.

          Legislative Remedies

Repeal repressive laws that encourage political killings;

Disapproval by the Commission on Appointments of appointments of officers of the armed forces, from the rank of colonel or naval captain if these officers are facing complaints involving human rights violations before administrative bodies or civil courts;

Allocate a high budgetary priority to human rights education;

Popularize laws that will give representation to human rights groups in national and local government bodies;

Popularize laws on witness protection, security and benefits and laws on compensation to victims of human rights violation.

          Executive Remedies

Vigorously pursue peace negotiations with the rebels of the left and of the right;

Dismantle armed vigilante groups and train civilian volunteers on respect for human rights;

Require the government's investigation and prosecutorial agencies to actively investigate and prosecute all reports of human rights violations;

Disarm members of military or police forces or paramilitary groups implicated in political killings and forthwith remove them from positions of power or control over complainants, witnesses, investigators and lawyer;

Prohibit the practice of red-labeling of critics and opponents by government authorities and by government backed-security forces;

Give incentives to policemen or military personnel turned human rights witnesses;

Disallow use of safehouses and illegal detention centers;

Appointment of military or police office officers shall not be made unless their human rights record have been thoroughly examined and it has been shown that they are not facing any complaint for human rights violations;

Instruct government officials to recite a human rights oath when they assume office and every December 10 of each year which marks the Universal Declaration of Human Rights day;

Require military and police academies to include human rights education in their curricula;

Include in government sponsored examinations questions about human rights.

          People's Initiatives

Give annual awards to military or police officers, judges and prosecutors who helped in the promotion and protection of human rights;

Sponsor oratorical contests and songfests whose themes focus on human rights;

Place human rights posters in airports, seaports and bus terminals;

Place human rights stickers in cars and other moving vehicles;

Grant incentives to individuals who cooperate as witnesses.

The government should assure that the commission of a "disappearance" is a criminal offense, punishable by sanctions commensurate with the gravity of the practice. The prohibition of "disappearances" and the essential safeguards for their prevention must not be suspended under any circumstance, including states of war or other public emergency.

The Philippine government and all non-state actors should strictly comply with its obligation to implement the International Covenant on Civil and Political Rights and its first Optional Protocol which provides for individual complaints. The government and non-state actors should ensure full implementation of the relevant provisions of these and other international instruments, including the UN Declaration on the Protection of all Persons from Enforced Disappearance, and comply with the recommendations of intergovernmental organizations concerning these abuses.

The above long list of CHR’s recommendations are published in its official website.[47]  But as to how the different branches of government vigorously pursue these recommendations has yet to be seen nor being implemented. Considering that these recommendations were published since May 7, 2004, it appears that nothing more has been achieved except lip service.

The Commission on Human Rights has its Instruments Monitoring Office. In its official website it explains the concept of said office:[48]

The Philippines has ratified major human rights treaties, which, as a State Party, it is under obligation to comply with. The Philippine Commission on Human Rights through its Instruments Monitoring Office is mandated to monitor government compliance and undertake independent review and reporting of the different international treaties and agreements entered into by the Philippines.

The said office under CHR has several objectives, among which is to develop and apply methodologies for the provision of advise and assistance to government and its institutions in complying with treaty obligations and in orienting decision makers and implementers on new treaties and obligations, and for effective advocacy in harmonizing domestic laws with international standards and best practices on human rights.[49]

This Instruments Monitoring Office of the CHR, which probably is unheard of by many, has to play a more active role in ensuring the State’s compliance with the International Convention on Civil and Political Rights.

This researcher went to the CHR and made a written request for information on the programs undertaken by its Instruments Monitoring Office. The CHR failed to provide any information whether they have such programs.

Mexico. In Mexico, Human Rights Watch, an international human rights organization, urged the Mexican government to:[50]

Establish comprehensive, accurate national databases of the disappeared and of unidentified human remains;

Reform the Military Code of Justice to ensure that all alleged human rights violations, including enforced disappearances, committed by military personnel against civilians are investigated and prosecuted in the civilian justice system;

Revise the definition of enforced disappearance in federal and state laws to ensure that it is consistent across Mexico and in line with international human rights law; and

       Issue an executive order mandating the immediate presentation of all detainees before the          public prosecutor’s office and making clear that under no circumstances may detainees be taken to military installations, police stations, or illegal detention facilities.

In Chile, for example, its National Commission on Truth and Reconciliation made several recommendations to prevent enforced disappearance:[51]

With regard to legal training

    We urge that the law departments in our country's various

Universities devote particular attention to the question of human rights so that future judges and lawyers will be well-trained in this area.

With regard to the number of judges

    We urge an increase in the number of judges and prosecutors in the higher courts.

    The heavy workload in the higher courts makes it absolutely necessary to take steps to increase the number of judges and prosecutors in those tribunals. 

Such a measure would be conducive to taking up the above proposal since it would make it possible to replace "member lawyers" with permanent

members who, we believe, would be better able to carry out their judicial functions.

 Reforming the military judiciary so as to assure respect for the constitutional guarantee that persons will be tried by an independent tribunal

    The fact that magistrates and prosecutors in military tribunals are also members of the various branches of the armed services and hence are subject to their command structures seriously compromises the independence of these tribunals in carrying out their judicial responsibilities.

    We therefore suggest that the competence of military tribunals be restricted to strictly military crimes, that is, to crimes committed by armed forces and police personnel while on duty and against persons who are also members of these institutions.

 We also propose that all those who serve on such

tribunals be lawyers, and that in all circumstances they remain under the supervision of the Supreme Court for purposes of correcting, providing direction, and supervising expenditures, and that the required constitutional or legal reforms be prepared to this end.

Assuring compliance with court orders

    The failure of the police and investigative police to truly collaborate with the work of the judiciary has tended to seriously impede a thorough administration of justice. 

This problem could be resolved by means of a special police whose sole responsibility would be to assure compliance with court decisions.

 Such a police force would answer to the judiciary

branch rather than the executive branch, which often receives orders issued by the courts.

 We therefore recommend that the possibility and desirability of creating a judicial police be examined. Another way of solving the problem might be to have the judiciary participates in training the police staff responsible for assuring compliance with court decisions.

At the end of the day, the threat of forced disappearance is real. 

It could happen to anyone especially to the defenseless. The legal system is in place to prevent and stop these human rights abuses. But unless the system functions properly, we may have to endure and suffer the consequences of a dysfunctional government.

Fr. Bernas stated that there is now a universal recognition of basic human rights principle[52]:

There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens… 

There is no doubt that these rights are often violated; but virtually all governments acknowledge their validity.

Each country has the obligation to implement human rights law within its jurisdiction. We do not have to wait for the UN Human Rights Commission to conduct their own procedure.

As the UN procedure now operates, it carries out two types of activities.[53] First, it holds annual public debates in which governments and NGOs are given the opportunity to identify publicly country specific situations, which deserve attention. 

Second, it engages in studies and investigations of particular situations through the use of various techniques the Commission might deem appropriate.

What can result from these procedures?

 Various things can follow: embarrassment of erring countries; pressure on governments to take the issue on multilateral level; statement of exhortation from the Commission or call from the Commission for all available information; the Commission might appoint a Special Rapporteur to examine and submit a report on the issue; the Commission might ask the Security council to take up the issue with a view to promulgating sanctions.[54]

A State party to the International Covenant on Civil and Political Rights will have to be proactive in its implementation of certain provisions particularly on a citizen’s right to liberty and security of person. 

The law enforcement arm of the State must be constantly reminded to respect the rule of law and the basic rights of every individual. These are non-derogatory rights and every violator including his superior must be held accountable for their actions.

---

[1] Coquia, Jorge; Human Rights, Central Book Supply, Inc., 2012 Edition.

[2] Ibid.

[3] Ibid.

[4] Coquia, Jorge; Human Rights, Central Book Supply, Inc., 2012 Edition.

[5] Ibid.

[6] Colmenares, Neri; Human Rights Law Forum, San Sebastian College, Sept.1, 2014. As early as June 17, 1925, the Philippines signed the “Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases and other Bacteriological Methods of Warfare.”

[7] International Convention for the Protection of All Persons from Enforced Disappearance.

[8] Bayan Muna Representative Neri Colmenares was one of the main authors of the Anti-Enforced Disappearance Law.

[9] Coquia, Jorge; Human Rights, Central Book Supply, Inc., 2012 Edition.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Sarmiento, Rene; Human Rights Law, Human Rights Culture, Rex Book Store, Inc., 2013.

[15] Ibid.

[16] http://humanrightshistory.umich.edu/problems/disappearances/. Retrieved 9 December 2014. [Online].

[17] Ibid.

[18] Ibid.

[19] http://www.karapatan.org/files/Karapatan%20Monitor_AprJun2010.pdf

[20] http://www.karapatan.org/files/K%20Monitor%202Q%202014%20Issue%202_1.pdf

[21] http://ca.judiciary.gov.ph/index.php?actions=mnuactual_contents&ap=j5060. Retrieved 9 December 2014. [Online].

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] http://www.amnesty.org/en/region/philippines/report_2012#section23-4. Retrieved 9 December 2014. [Online].

[31] Ibid.

[32] http://www.amnesty.org/en/region/philippines/report_2013#section-117-5. Retrieved 9 December 2014. [Online].

[33] Ibid.

[34] http://www.chr.gov.ph/MAIN%20PAGES/about%20hr/position%20papers/abthr_posAntienfDis062408.htm.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] http://www.ohchr.org/EN/HRBodies/CED/Pages/CEDIndex.aspx.

[42] http://www.chr.gov.ph/MAIN%20PAGES/about%20hr/advisories/abthr031-035.htm#exec

[43] http://www.gmanetwork.com/news/story/49961/news/jonas-joseph-t-burgos.

[44] http://www.chr.gov.ph/MAIN%20PAGES/about%20hr/advisories/abthr041-045.htm#burgos.

[45] http://www.chr.gov.ph/MAIN%20PAGES/about%20hr/position%20papers/Reso_CHR_A2009-172.htm.

[46] Note 32, Supra.

[47] http://www.chr.gov.ph/.

[48] http://www.chr.gov.ph/MAIN%20PAGES/services/hr_promo2_imo.htm#imo

[49] Ibid.

[50] www. hrw.org/reports/2013/02/20/mexicos-disappeared.

[51] Report of the Chilean National Commission on Truth and Reconciliation. Posted by United States Institute of Peace Library on October 4, 2002.

[52] Fr. Joaquin G. Bernas, S.J.; An Introduction to Public International Law, Rex Book Store, 2002, First ed.

[53] Ibid.

[54] Ibid.