The Campaign Against Enforced Disappearance: The Philippine Experience
(Keynote Speech of Rep. Edcel C. Lagman on the International Day of the Disappeared on August 30, 2012 at Bocobo Hall, UP Law Center)
After 35 years of searching and fighting for justice for a desaparecido son, Atty. Hermon C. Lagman, a human rights and labor lawyer, who disappeared during martial law, my mother Mrs. Cecilia Castelar Lagman, founding Chairperson of FIND and a member of the first Board of Directors of the Bantayog ng mga Bayani Foundation, Inc., on August 13, 2012, joined her creator and other relatives of the disappeared who have gone ahead of us.
It is, indeed, lamentable that after the long and relentless fight, relatives of the disappeared grow old and die without finding their missing kin and even as justice for the extremely odious act remains elusive.
While most families of the disappeared fail to locate their missing kin, in the words of former Senator Jovito Salonga “…in a profound sense, we have already found them and we are finding them whenever men and women continue the valiant struggle for truth, freedom, justice and national sovereignty. We find them wherever the youth of the land offer their talents, energies, and resources for a cause bigger than life itself.”
The campaign against enforced disappearance, therefore, interlocks with the peoples’ struggle for a liberating truth, empowering democracy, enduring peace built on justice, and respectable sovereignty.
These were the unshakable dreams and aspirations that our disappeared heroes and martyrs steadfastly sought to realize and for which they selflessly sacrificed their liberty and life.
The collective struggle for freedom and life with dignity and honor does not end with the forced disappearance of activist advocates. To paraphrase Senator Salonga: the disappeared are resurrected in the men and women who courageously sustain the struggle for the causes fought for by the martyrs of social and political transformation. As the struggle continues, history constantly reminds the inheritors of the past to uphold human dignity and protect all persons from human rights violations. The most cruel among these transgressions and one that violates practically all human rights is enforced disappearance.
A global tool of political repression, enforced disappearance is practiced by no less than 87 States, including the Philippines. We surmise that the campaign against enforced disappearance in the country had its stirrings in the first anguished cries of protest from the relatives, comrades and colleagues of the early desaparecidos.
Since these political activists belonged to politicized middle class families, it did not take long for nine of the grieving families to bond together and decide to collectively fight against enforced disappearance and for justice for their missing loved ones.
Thus, on November 23, 1985, the Crismo, Del Rosario, Lagman, Ontong, Pardalis, Reyes, Romero, Tayag and Yap families founded the Families of Victims of Involuntary Disappearance (FIND) with the invaluable assistance of the Task Force Detainees of the Philippines (TFDP), notably its then Chairperson Sister Marianni Dimaranan.
Henceforth, FIND has taken the lead in the organized campaign against enforced disappearance. The guiding direction of the campaign is to transform the crusade against enforced disappearance from a familial mission into a bigger societal agenda by the human rights community with FIND at the helm.
Securing public support for the fight against enforced disappearance is imperative amidst the prevailing culture of impunity. The call to hold government authorities, more particulary the security forces, accountable for acts of enforced disappearance had for many years fallen on deaf ears. Persistent collective efforts of human rights advocates and defenders to engage concerned authorities in addressing enforced disappearance have in no small measure enlightened certain individuals in government on the urgency of instituting protection from enforced disappearance and of putting an end to impunity.
Consequently, after languishing in seven Congresses, the anti-enforced disappearance counterpart bills have been passed by both the House and the Senate. The House of Representatives last Tuesdayelected seven of its members, namely: Representatives Niel Tupas, Jr., Rene Relampagos, Lorenzo Tanada III, Karlo Alexei Nograles, Magtanggol Gunigundo, Carlos Padilla and this representation as conferees to the bicameral conference committee on House Bill No. 98 and Senate Bill No. 2817 or the anti-enforced or involuntary disappearance bills. The Senate has yet to elect its conferees.
House Bill No. 98 and Senate Bill No. 2817 have no significant disagreeing provisions, except some differences in style, absence in either version of counterpart provisions which are not overriding, and the lack of an appropriation language in the Senate bill. We expect a smooth-sailing bicameral conference soonest. I am confident that the President will sign the enrolled bill once it is transmitted to Malacanang.
It should be recalled that the anti-enforced disappearance bill has been in the House of Representatives since 1990 or 22 years. The first bill that sought to criminalize enforced disappearance was not supported by FIND and other human rights organizations because it imposed the death penalty on the perpetrators. In the 9th Congress, the late Rep. Bonifacio Gillego of Sorsogon introduced a new anti-disappearance bill that imposed reclusion perpetua as the gravest penalty.
When I returned to Congress in 2004, I immediately filed a revised version of the bill which was later consolidated with similar measures. This bill was approved by the House on third and final reading and promptly transmitted to the Senate which, unfortunately, failed to approve the counterpart measure. In the following 14th Congress, I reintroduced the bill which was also passed by the House but the Senate again was unable to approve its own version of the bill.
Among the common salient provisions of House Bill No. 98, which I principally authored, and Senate Bill No. 2817, the current bills in the 15th Congress, are:
1. Penalizing enforced disappearance as a separate criminal offense.
2. Adopting the United Nations definition of enforceddisappearance that principally makes liable agents of the State and excludes non-state actors as perpetrators;
3. Declaring the right against enforced disappearance as non-derogable or cannot be suspended under any circumstances including political instability, threat of war, state of war or other public emergencies;
4. An act constituting enforced or involuntary disappearance shall be considered a continuing offense as long as the fate or whereabouts of the victim is unknown;
5. Inapplicability of the Statute of Limitations for victims whose fate and whereabouts remain unclarified;
6. Maintenance of up-to-date registers of datainees and prisoners;
7. Expeditious disposition and enforcement of court orders and rulings;
8. Penal sanctions ranging from arresto mayor to reclusion perpetua;
9. Preventive suspension or summary dismissal, if warranted, of perpetrators;
10. Liability of offenders under other national criminal laws;
11. Inapplicability of double jeopardy under international law;
12. Criminal liability of commanding officers or superiors;
13. Right to disobey an order to commit enforced disappearance;
14. Exclusion of offenders from amnesty and similar measures;
15. Restitution of honor,monetary compensation to and rehabilitation ofvictims and next-of-kin.
A law criminalizing enforced disappearance is of overriding significance in bringing perpetrators to justice. No existing penal law captures all the constitutive elements of enforced disappearance which must be a distinct offense. However, in the absence of a law penalizing enforced disappearance, some families of the disappeared have filed kidnapping and serious illegal detention and/or murder against suspected perpetrators.
It is high time that we label as enforced or involuntary disappearance the act of depriving a person of his/her liberty by State authorities followed by a denial of the arrest, abduction or detention or concealment of the fate or whereabouts of the victim. A law criminalizing enforced disappearance as an autonomous offense would facilitate the filing of appropriate criminal charges against the offenders and hopefully deter others from committing the same odious multiple violation of human rights.
Legal protection from a global menace must be guaranteed in both the national and international levels. Hence, the relentless campaign for the Philippines to enact a domestic law penalizing enforced disappearance and to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
FIND and AFAD actively participated in the final drafting of the Convention in the United Nations in Geneva and joined other associations of families of the disappeared in lobbying for the adoption of the Convention by the United Nations Human Rights Council and subsequently by the United Nations General Assembly. In fact, both FIND andAFAD delivered oral interventions to urge the UN Human Rights Council to adopt the Convention at the Council’s opening session in June 2006.
Moreover, the International Coalition Against Enforced Disappearances (ICAED), of which FIND and AFAD are members, with AFAD serving as the current focal organization, has been lobbying States across continents, more particularly in Asia, to sign and ratify the Convention and recognize the competence of the Committee on Enforced Disappearance that would monitor States Parties’ compliance with the provisions of the Convention.
I do not wish to preempt the presentation of the policy paper on the Convention by the Institute of Human Rights of the UP Law Center but I assure you that the proposed Anti-Enforced Disappearance Law and the Convention are complementary and mutually reinforcing. Their full implementation would undoubtedly strengthen legal protection from enforced disappearance even as it would promote human rights and civil liberties and uphold the rule of law. It would serve as an enduring tribute to the desaparecidos and their families who have kept the flame of courage incessantly burning in pursuing the vision of the disappeared of a society and a world free of exploitation and human rights violations.
On a personal note, I dedicate the soon-to-be-enacted Anti-Enforced or Involuntary Disappearance Law to my late human rights advocate mother, Mrs. Cecilia Castelar Lagman. This was also intimated to me by Rep. Lorenzo Tanada III, another author of the bill, during my mother’s wake.
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