Part 1 of 2 reports

MANILA – For human rights workers, the major hindrance in conducting search and independent investigations for victims of enforced disappearance (desaparecidos) is that state actors are unwilling to cooperate.

Ma. Cristina Guevarra has been part of several search missions for two decades. She is the public information officer of human rights group Karapatan and secretary-general of Desaparecidos, a support group for the families and friends of the victims. 

“All search missions start with very scarce information,” said Guevarra in an interview with Bulatlat. “Another challenge arises from the kind of climate where full cooperation from state forces cannot be expected. Even the safety and security of the search missions themselves are often at risk.”

The Anti-Enforced Disappearance Law of 2012, particularly Section 8, states that government agencies, including the Philippine National Police (PNP) and Armed Forces of the Philippines (AFP), have the duty to issue certifications in response to inquiries about people believed to have been victims of enforced disappearance.

The certifications should include any information or response to the inquiry.

However, multiple cases documented by Karapatan and even reports of Bulatlat show that personnel at police and military camps even refused to sign or write certifications when families and human rights organizations conducted search missions. 

Families and groups asserting the state’s duty to provide information or at least document the inquiry are often met with hostility.

“In many instances, it is the very people searching for the disappeared who become most vulnerable to threats, harassment, and intimidation. This underscores how such acts are state-perpetrated and highlights the prevailing culture of impunity,” Guevarra added.

An alarming trend

This trend is alarming, since aside from the law itself, it is the duty of the government as mandate-holders to respect the right of the families and the human rights organizations to inquire and search for the disappeared activists. 

“The fact-finding teams often find themselves in the absurd position of having to explain the very law to the officials. If we report a disappearance, they will first ask what forms we are holding, and we will have to justify the legal basis,” said Guevarra.

Here are some of the emblematic cases Bulatlat covered in the current administration of Ferdinand Marcos Jr., highlighting the uncooperative and even hostile nature of the state forces against search missions:

• In the headquarters of the Northern Luzon Command, Camp Crame, National Intelligence Coordinating Agency (NICA), Intelligence Service of the Armed Forces of the Philippines (ISAFP), the Task Group Baguio, and Taytay Municipal Police Station, in search of abducted indigenous rights activists Dexter Capuyan and Gene Roz Jamil “Bazoo” De Jesus.
• In the Lucena District Jail, searching for previously disappeared activist Rowena Dasig in the Lucena District Jail.
• In the military camps of the 401st and 402nd Infantry Brigades in Prosperidad, Agusan del Sur and Butuan, Agusan del Norte in search for reportedly missing Lumad leader Genasque Enriquez.
• In the military camps of 7th Infantry Division, the 703rd Infantry Brigade, and the 84th Infantry Battalion in search for peasant organizers Norman Ortiz and Lee Sudario.
• In the headquarters of the Northern Luzon Command in the case of Ma. Elena Pampoza and Elgene Mungcal.
• At Region 5 headquarters of the Criminal Investigation and Detection Group (CIDG) in search of IT consultant James Jazmines and environmental activist Felix Salaveria.

Jasmin Regino, director of the protection office of the Commission on Human Rights (CHR), said in an interview with Bulatlat that investigations are often stonewalled by the alleged perpetrators.

She stressed that this culture of non-cooperation is not new—it has persisted across administrations, particularly during the presidency of Rodrigo Duterte.

“Generally speaking, they simply refuse to give information,” Regino said. “Sometimes investigators try to build rapport, but agencies interpret the release of documents differently. We are already exercising our coercive powers. Before, they would hide behind the Data Privacy Act (DPA), but we have made it clear: We are exempted from it as an investigative body.”

Despite that, Regino said, access to investigation remains challenging with the inventory of exceptions under Executive Order (EO) 2 by the Duterte administration, which has persisted to the current Marcos administration. Access to the following information is restricted:

1. Information covered by Executive privilege.
2. Privileged information relating to national security, defense, or international relations.
3. Information concerning law enforcement and protection of public and personal safety.
4. Information deemed confidential for the protection of the privacy of persons and certain individuals such as minors, victims of crimes, or the accused.
5. Information, documents or records known by reason of official capacity and are deemed as confidential, including those submitted or disclosed by entities to government agencies, tribunals, boards, or officers, in relation to the performance of their functions, or to inquiries or investigation conducted by them in the exercise of their administrative, regulatory, or quasi-judicial powers.
6. Prejudicial premature disclosure.
7. Records of proceedings or information from proceedings which, pursuant to law or relevant rules and regulations, are treated as confidential or privileged.
8. Matters considered as confidential under banking and finance laws, and their amendatory laws.
9. Other exceptions to the right to information under laws, jurisprudence, rules and regulations.

This is the same executive order used to deny the CHR and the families of drug war victims information coming from the police.

This was revealed by CHR chairperson Richard Palpal-latoc during the hearing of the House of Representatives (HOR) related to the victims of extra-judicial killings of Duterte’s so-called drug war.

Read: Duterte administration blocked drug war victims’ access to justice, lawyers say

“Most of the cases are archived. There is no conviction at all. They were archived because we cannot close and terminate the case because enforced disappearance is a continuing crime,” said Regino. 

Flawed mechanism

To overcome the restrictive access to information, CHR tries to coordinate with the PNP Human Rights Affairs Office (PNP HRAO) and the AFP Center for Law of Armed Conflict (AFP CLOAC).

Sometimes, they conduct case conferences and data-sharing agreements through the Administrative Order (AO) 35 mechanism, which established the Inter-Agency Committee on extra-legal killings, enforced disappearances, torture and other grave violations of the right to life, liberty, and security of persons.

However, Karapatan said that the AO35 mechanism has only shown the glaring impunity in the cases since perpetrators were cleared through “acquittals and dismissals in court, or through dismissals by the Ombudsman, or through dismissals or provisional dismissals by the prosecution” in in 33 percent of overall cases. 

In particular, there has been no conviction on the crime of enforced disappearance, even with the enactment of the Anti-Enforced Disappearance Law. In fact, instead of investigating and prosecuting the perpetrators for the enforced disappearance of Jhed Tamano and Jonila Castro, the DOJ – the lead agency in AO35 – recommended the filing of grave oral defamation case against the two activists.

Notably, Castro and Tamano revealed in a press conference organized by the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) in September 2023 that they were forcibly disappeared by soldiers and denied access to lawyers and their loved ones for 17 days. 

Surfaced on September 19, 2023, the National Task Force to End Local Communist Armed Conflict had planned to present them to the public as “rebel surrenderers.”

Fortunately, the Bulacan Municipal Trial Court has since dismissed the grave oral defamation case against the two environmental activists.

Read: Court junks defamation case against 2 environmental defenders

Eerie silence and omission

The first mission Guevarra joined was the series of searches for disappeared student-activists Karen Empeño and Sherlyn Cadapan. Aside from the uncooperative state actors and hostile environment, she observed a pattern: an eerie silence every time they confronted the police and military camps.

“When you tell them who is missing, and it turns out the person is a member, leader, or even affiliated with a people’s organization, you immediately feel the same eerie silence present in other cases,” Guevarra noted. “There is already prejudice—as if they are silently justifying the disappearance.”

Most victims of enforced disappearance are red-tagged and vilified, not only online, but also on the ground.

Even Mercedita De Jesus, mother of disappeared activist Bazoo, experienced malicious tagging of her son as member of the New People’s Army (NPA) when she joined the search mission for him.

This is among the glaring cases of how red-tagging becomes a precursor to various forms of violence, threatening a person’s right to life, liberty, or security, according to the Supreme Court.

There are very few cases that some police and military officials would call Karapatan to tell them that the victims of enforced disappearances are not in their custody. However, these bare minimum actions, Guevarra added, can hardly contribute to the search.

Just recently, multiple rulings highlighted the failure of the state actors to search for the disappeared activists. In the case of Salaveria, the Court found that the PNP failed to properly investigate the case and did not exercise the required extraordinary diligence, making them responsible and accountable for Salaveria’s continuing disappearance.

In the most recent court win in the case of Capuyan and De Jesus, the CA also flagged the police’s omission of a key witness’s testimony which identified the armed abductors as members of the CIDG. Had it not been the court’s proactive questioning, the critical documents would not have been submitted as evidence at all.

Right(s) Up: Poor investigation of disappeared activists as human rights violation

Although the court has granted writs, not one among the disappeared has surfaced. Due to this, Guevarra and the families under Desaparecidos are calling for a review of the legal remedies available to the victims of enforced disappearance. 

“The filing of legal remedies are only the tip of the iceberg. The big question is: where are the victims? Especially those given the privileges already. The agony of waiting for them is taking a toll to the families and to all of us,” Guevarra added.

Given the absence of notable development since the enactment of the Anti-Enforced Disappearance Law and the granting of protective writs, the victims’ families, national and international human rights groups, and even United Nations Special Rapporteur Irene Khan, recommended to the Philippine government to ratify the International Convention for the Protection of All Persons from Enforced Disappearance to strengthen the mechanism. 

This is the only major human rights treaty that the country has not yet ratified. (JDS)