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Enforced disappearance: A distinct crime
Publication Date : 19-10-2012
In 1977, Primitivo Mijares disappeared. A newsman who had ingratiated himself into then Philippine President Ferdinand Marcos’ inner circle, he was present at the creation of the murderous martial law regime. But sickened by what he had witnessed, he wrote a tell-all book, “The Conjugal Dictatorship,” and lived in exile in the United States. For some reason, however, he accepted an invitation to return to the Philippines. He has never been seen since.
Three and a half decades since Mijares vanished in the Marcos gulag, is it still possible for his heirs and friends to dream of legal redress? A new bill, the conference committee version of which was approved on Tuesday by both the Senate and the House of Representatives, suggests that the answer in the Mijares case and in hundreds or even thousands of similar forced disappearances during martial law and in the years since then, may be, could be, yes. The bill now awaits President Benigno Aquino’s signature.
The Anti-Enforced Disappearance bill defines a new, distinct crime: “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the state or by persons or groups of persons acting with authorisation or support from the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared.”
It is a two-stage crime: a deprivation of liberty, and then denial or concealment. It is committed by either agents of the state, or persons “acting with authorisation or support from the state,” or both.
For the many Filipinos disturbed by Senate President Juan Ponce Enrile’s recent and much-publicised apologia for martial law, the bill’s most powerful aspect may be its provision on prescription; there is no statute of limitations on the crime if the “desaparecido” remains missing. Thus, the perpetrators of Mijares’ forced disappearance, if they are still alive, may still be haled to court.
For the many Filipinos disturbed by the high-profile and still unresolved disappearances of University of the Philippines students Karen Empeño and Sherlyn Cadapan in 2006 and activist Jonas Burgos in 2007, the bill’s most compelling feature may be its provision on command responsibility.
We have not yet read the reconciled version, but in the House bill, the provision is twice as long as, and much more specific than, that in the Senate bill. It begins: “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 for acts committed by him or her that shall have led to, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his or her subordinates.”
For the many Filipinos disturbed by news of forced disappearances continuing to this day, the bill’s most attractive quality may be what we can call its conscience clause.
Again, the House bill has the longer and more specific version: “An ‘order of battle’ or any order from a superior officer or a public authority causing the commission of enforced or involuntary disappearance is unlawful and cannot be invoked as a justifying circumstance. Any person receiving such an order shall have the right to disobey it.”
If the president signs the bill—and we see no reason why he shouldn’t: the main author in the Senate, Sen. Francis Escudero, was the son of a Marcos Cabinet secretary; Marcos’ own son, Sen. Ferdinand Marcos Jr., voted for the committee report consolidating similar Senate bills—the Philippines will become the first country in Asia to specifically outlaw the crime of forced or involuntary disappearance.
The principal author of the bill, Reppresentative Edcel Lagman, spoke from deep personal experience when he sought to place the new measure in perspective. “There should be enough of desaparecidos, because enforced disappearances have emotionally, mentally and physically displaced mothers and fathers, sisters, brothers, children. These disappearances have caused us to be put under the tight watch of local and international rights groups and even foreign governments.”
We share the hope that, by finally giving the terrible deed a (legal) name, the country can begin exorcising the ghost of disappearances past.