Draft Implementing Rules & Regulations of RA 10368

Draft IMPLEMENTING RULES AND REGULATIONS

of R.A. 10368,

otherwise known as the

“HUMAN RIGHTS VICTIMS’ RECOGNITION AND

REPARATION ACT OF 2013”

Draft IMPLEMENTING RULES AND REGULATIONS

of R.A. 10368,

otherwise known as the

“HUMAN RIGHTS VICTIMS’ RECOGNITION AND

REPARATION ACT OF 2013”REPARATION ACT OF 2013”REPARATION ACT OF 2013”

HUMAN RIGHTS VICTIMS’ CLAIMS BOARD

Outline of the PresentationOutline of the Presentation

• I. Guiding Principles

• II. Frequently Asked Questions• II. Frequently Asked Questions

• III. Human Rights Victims’ Board

• IV. Human Rights Violations Victims’ Memorial

Commission

I. Guiding PrinciplesI. Guiding Principles

• Access to Effective Remedy by Victims/Survivors of Martial Law (Rule I, section 3 or RI, s3)

– Not complete concept of Remedy: limited to addressing the effect of the violation on the victim/survivor effect of the violation on the victim/survivor

• Compensation and Non-monetary forms of reparation

– Original Jurisdiction is to determine eligibility of claimants of HRVs, extent of HRVV and determination of award to ensure proper distribution of the Fund (RIII, s1)

• Criminal liability of perpetrators not within the jurisdiction of the Board


• Due Process and Speedy Disposition of Claims

– transparency in the processing of the claims;

– a procedure that allows any concerned party to – a procedure that allows any concerned party to oppose an application or claim on the ground that it is fraudulent, fictitious or spurious and gives that party the opportunity to question the same and to present evidence in support thereof; and,

– a speedy and expeditious procedure respecting the parties’ fundamental rights. (RI, s2)


• State Obligation (RI, s3)

– Recognize the heroism and sacrifices of all

Filipinos who are HRVVs and and restore the Filipinos who are HRVVs and and restore the

victims’ honor and dignity;

– Acknowledge its moral and legal obligation to

recognize and/or provide reparation to said

victims


• Liberal interpretation in favor of HRV (RI, s4)

– Protection of Claimants (RV, s7)

• Non-discrimination• Non-discrimination

• Participation

• Attention to Vulnerable Groups

– Sustainability of non-monetary reparations

– Accessibility and reasonable accommodation

• Gender Integration

• Accountability

II. What is the nature of the proceedings?II. What is the nature of the proceedings?

• Original jurisdiction (RII, s1, a)

– Determination of eligibility of claims, HRVV and

points

• Summary Proceedings (RV, s5)

– Adopts Revised Rules on Summary Proceedings, incl.

Rules on Prohibited pleadings and motions

• Substantial Evidence (RV, s3)

– Authority to validate, verify, investigate and hear

claims/allegations

• No Fees (RV, s4)

II. When is a claimant eligible for an

award? (RIII, s6)

II. When is a claimant eligible for an

award? (RIII, s6)

• The applicant must be qualified to be an eligible

claimant and present proof on:

– That s/he is a legitimate claimant under section

Rule V, section 1, paragraph 1, including

applicants seeking recognition;applicants seeking recognition;

– The human rights violation is one of those

enumerated under Rule II, C, and Rule V,

section 2, and committed during the period

identified.

II. Who may file a claims application? (RV,

s1)

II. Who may file a claims application? (RV,

s1)

• A person who is an HRVV as defined in Rule II, D.– “Human Rights Violations Victim (HRVV)” refers to a person

whose human rights were violated by persons acting in an official capacity and/or agents of the State as defined herein. In order to qualify for reparation under this Act, the human rights violation must have been committed during the period from September 21, 1972 to February 25, 1986: Provided, however, That victims of human rights violations Provided, however, That victims of human rights violations that were committed one (1) month before September 21, 1972 and one (1) month after February 25, 1986 shall be entitled to reparation, under this Act if they can establish that the violation was committed:

• (1) By agents of the State and/or persons acting in an official capacity as defined hereunder;

• (2) For the purpose of preserving, maintaining, supporting or promoting the said regime; or

• (3) To conceal abuses during the Marcos regime and/or the effects of Martial Law.

II. Who may file a claims application?

(RV, s1)


(RV, s1)

• Claimants who are conclusively presumed to be a HRVV under section 3 of Rule V.– The claimants in the class suit and direct action

plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 88-0390) in the US Federal District Court of Honolulu, Hawaii, wherein a favorable judgment has been Hawaii, wherein a favorable judgment has been rendered, shall be extended the conclusive presumption that they are HRVVs: Provided, That the HRVVs recognized by the Bantayog Ng Mga Bayani Foundation shall also be accorded the same conclusive presumption: Provided, further, That nothing herein shall be construed to deprive the Board of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted.


(RV, s1)


(RV, s1)

• Legal heir/s, as determined by the provisions of Articles

960 to 1010 of the Civil Code of the Philippines, or

authorized representatives of HRVVs who are deceased,

incapacitated, or involuntarily disappeared.

– NSO issued proof of filiation and relationships. In the absence

thereof, affidavits of at least two (2) disinterested thereof, affidavits of at least two (2) disinterested

individuals;

– In case of victim is lacking in capacity to file the

application personally, a notarized authorization

showing proof of identity of the authorized

representative;

– In case of incapacity by reason of mental or

psychological disability, NSO issued proof of filiation or

relationship of the nearest next of kin in accordance

with the Civil Code provisions on succession. (RV, s2)

II. What injuries or violations are covered

by the claims application? (RII, s1, c)



• “Human rights violation” (HRV) refers to

any act or omission committed during the

period from September 21, 1972 to

February 25, 1986 by persons acting in an

official capacity and/or agents of the Stateofficial capacity and/or agents of the State

– Illegal arrest and detention

– physical injury, torture, killing, or

violation of other human rights, of any

person exercising civil or political rights

• Torture as defined under R.A. 9745





• “Human rights violation” (HRV)

– Enforced or involuntary disappearance

as defined under RA 10353

– Involuntary exile– Involuntary exile

– Illegal takeover of a business,

confiscation of property, detention of

owner/s and or their families,

deprivation of livelihood of a person by

agents of the State





• “Human rights violation” (HRV)

– Kidnapping or otherwise exploiting children of persons;

– sexual offenses against human rights victimsvictims

• sexual offense refers to either crime of sexual harassment or sexual offenses defined by the Revised Penal Code other than rape

– similar or analogous to the above, including those recognized by international law.

What Remedies are Available to the HRVV?What Remedies are Available to the HRVV?

• Compensation

• Recognition

• Non-monetary reparation• Non-monetary reparation

II. Who are persons acting in an official

capacity or State agents? (RII, s1, e)



• “Persons Acting in an Official Capacity and/or Agents of the State” refer to:

• (1) Any member of the former Philippine Constabulary (PC), the former Integrated National Police (INP), the Armed Forces of the Philippines (AFP) and the Civilian Home Defense Force (CHDF) from September 21, 1972 to February 25, 1986 as well as any civilian agent attached February 25, 1986 as well as any civilian agent attached thereto; and any member of a paramilitary group even if one is not organically part of the PC, the INP, the AFP or the CHDF so long as it is shown that the group was organized, funded, supplied with equipment, facilities and/or resources, and/or indoctrinated, controlled and/or supervised by any person acting in an official capacity and/or agent of the State as herein defined;

• (2) Any member of the civil service, including persons who held elective or appointive public office at any time from September 21, 1972 to February 25, 1986;





• “Persons Acting in an Official Capacity and/or Agents of the State” refer to:

• (3) Persons referred to in Section 2(a) of Executive Order No. 1, creating the Presidential Commission on Good Government (PCGG), issued on February 28, 1986 and related laws by then President Corazon C. 1986 and related laws by then President Corazon C. Aquino in the exercise of her legislative powers under the Freedom Constitution, including former President Ferdinand E. Marcos, spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as their close relatives, associates, cronies and subordinates; and

• (4) Any person or group/s of persons acting with the authorization, support or acquiescence of the State during the Marcos regime.

II. What is the period when violation or

injury should have occurred? (RV, s2)

II. What is the period when violation or

injury should have occurred? (RV, s2)

• September 21, 1972 to February 25, 1986:

• Provided, however, That victims of human rights violations that were committed one (1) month before September 21, 1972 and one (1) month after February 25, 1986 shall be entitled to reparation, under this Act 25, 1986 shall be entitled to reparation, under this Act if they can establish that the violation was committed:

– By agents of the State and/or persons acting in an official capacity as defined hereunder;

– For the purpose of preserving, maintaining, supporting or promoting the said regime; or

– To conceal abuses during the Marcos regime and/or the effects of Martial Law.

II. What proof needs to be submitted

to show HRV? (RV, s2)

II. What proof needs to be submitted

to show HRV? (RV, s2)• NSO issued proof of death;

• Warrant of arrest, seizure orders (PDA, PCO, ASSO), mission order and other similar documents;

• Certification by custodial government agencies on fact of detention, carpeta, police blotter, NBI files, release papers and other similar documents;

• Doctors’ Affidavits, Medico-legal, autopsy or pathology certificate or report, and other similar documents;report, and other similar documents;

• Declassified documents from the Department of National Defense;

• Court records;

• Original or duly certified lawyers’ records;

• Photographs with affidavit of proper authentication;

• Affidavit of three (3) disinterested persons;

• Secondary sources of information from reliable sources may be presented such as Church/Non Government Organization Report, Books documenting HRVs, News clippings or other similar documents;

• Other documents and evidence attesting the occurrence incident and violations or that may be required for the award of any reparation.

• NEXT SLIDES:

– GUIDE ON DECIDING A CLAIM

II. What are the steps in deciding a claim?II. What are the steps in deciding a claim?

• A. Filing of a Claims Application

• initial evaluation by the Secretariat to determine

completeness, investigation and submission of

reasoned recommendation (RIV, s1)reasoned recommendation (RIV, s1)

– Completeness: shows/proves eligibility of

claimant and HRV (RIV, s3)

• If complete: referral to Division:

– Board acts through its Divisions in resolving

claims (RIII, s2)

• If incomplete, applicant given time to complete


• B. Determination of Eligibility of Claims and Monetary Reparation (RIII, s6 & 7)

• A point system shall guide the determination of the award in the following manner:

– Victims who died or who disappeared and are still – Victims who died or who disappeared and are still missing shall be given ten (10) points;

– Victims who were tortured and/or raped or sexually abused shall he given six (6) to nine (9) points:

– Victims who were detained shall be given three (3) to five (5) points; and

– Victims whose rights were violated under Section 3, paragraph (b), nos. (4), (5) and (6) under RA 10368 shall be given one (1) to two (2) points. (RIII, s7)


• B. Determination of Eligibility of Claims and Monetary Reparation (RIII, s6 & 7)

• In each category, HRVVs who had suffered more would receive more points. In instances where a victim is classified in more than one category, one shall be awarded the points in the higher victim is classified in more than one category, one shall be awarded the points in the higher category: Provided, That in cases where there are several eligible claims filed for reparation by or on behalf of a particular HRVV, the Board, through the Divisions, shall award only one (1) valid claim which corresponds to the category obtaining the highest number of points for each eligible claimant. (RIII, s7)


• B. Determination of Eligibility of Claims and

Monetary Reparation (RIII, s6 & 7)

• After the final determination of the awards

for all claimants, the Board shall then for all claimants, the Board shall then

compute the final monetary value of one’s

award that is equivalent to the numerical

value of one point multiplied by the number

of points that a claimant is entitled to, as

previously determined by the Board. (RIII, s7)


• C. Determination of Non-monetary Reparation(RIII, s8)

– The Board, through the Divisions, shall include in the resolution, when applicable, provision for necessary services as non-monetary in the resolution, when applicable, provision for necessary services as non-monetary reparation for HRVVs and/or their families, such as counselling, social protection, health services, educational scholarship or assistance, subject to the guidelines and mechanisms to be determined by the Board, in coordination with the identified governments agencies in Rule V, Section 10.


• D. Notice to applicants regarding eligibility of claim

• E. Board approves list of all eligible claimants and directs its publications in two (2) and directs its publications in two (2) newspapers of general circulation once a week for three (3) consecutive weeks.

– Filing of Opposition within 15 calendar days from date of last publication

– Board remands to concerned Division to rule on Opposition (RIII, s9)


• E. Board approves list of all eligible claimants

– Grounds for Opposition: (RIII, s9)

• The new claimant is not legitimate under • The new claimant is not legitimate under

section Rule V, section 1, paragraph 1;

• The human rights violation is not one of

those enumerated under Rule II, C, and

Rule V, section 2;

• The claim is fraudulent, fictitious or

spurious.


• F. Appeal to the Board (RIII, s10)

• Through a Notice of Appeal with the Secretariat, within ten (10) calendar days from receipt of the resolution, on any of the following grounds:

– That the resolution is not supported by substantial evidence.

– That the claimant or opposing party has been deprived, through no fault attributable to her, of presenting her evidence in support of her claim or opposition during the Division proceedings.


• F. Appeal to the Board

NOTE: In the case of conclusively presumed claimants, any opposition may be filed within 10 days as an appeal to the Board en banc on grounds under section 9 and 10 of Rule III. (RIII, s9)grounds under section 9 and 10 of Rule III. (RIII, s9)

• The appellant shall submit a Memorandum appended to the Notice of Appeal, in at least nine (9) copies, citing the grounds why the resolution of the Division should be vacated, set aside or modified. A failure to submit said Memorandum shall be deemed non-perfection of the appeal. (RIII, s10)


• F. Appeal to the Board (RIII, s10)

• The Board en Banc shall resolve the appeal within

fifteen (15) calendar days from the time it is

deemed submitted for resolution.

• The decision on the appeal by the Board en banc

is final and executory.

• Any pending appeal filed by an aggrieved claimant

or oppositor before the Board en banc must be

resolved within sixty (60) calendar days before it

becomes functus officio.


• G. Effectivity of Award of Monetary Compensation

(RIII, s12)

– Within thirty (30) days after the Board has – Within thirty (30) days after the Board has

approved with finality each eligible claim

pending before it and after due publication of

such legitimate claim, the award of monetary

compensation shall take effect.

• NEXT SLIDES

– FORMS OF REPARATION

– HUMAN RIGHTS VICTIMS’ CLAIMS

BOARDBOARD

– HUMAN RIGHTS VIOLATIONS VICTIMS’

MEMORIAL COMMISSION

II. How are remedies rendered?II. How are remedies rendered?

• Compensation:

– Based on a point system taking into account the frequency and duration of the violation, and, severity of harm and its consequences

– Only one (1) valid claim which corresponds to the category – Only one (1) valid claim which corresponds to the category obtaining the highest number of points for each eligible claimant.

– After the final determination of the awards for all claimants, the Board shall then compute the final monetary value of one’s award that is equivalent to the numerical value of one point multiplied by the number of points that a claimant is entitled to, as previously determined by the Board. Monetary reparation shall be free of tax. (R3, s7)


• Compensation:

– Monetary reparation is free of tax.No special power of

attorney shall be recognized in the actual disbursement

of the award, and only the victim or successor(s)-in-of the award, and only the victim or successor(s)-in-

interest shall be entitled to personally receive said

reparation form the Board, unless the victim involved is

shown to be incapacitated to the satisfaction of the

Board. (RV, s7)

– Ten billion pesos (P10,000,000,000.00) less expenses

for implementation of the law (RVI, s5 & 6)


• Recognition:

– Persons who are HRVVs, regardless of whether they opt

to seek reparation or not, shall be given recognition by

enshrining their names in a Roll of Human Rights enshrining their names in a Roll of Human Rights

Victims to be prepared by the Board. (RIII, s14)

– Motu Proprio Recognition based on judicial notice (RIII,

s13)


• Non-monetary reparation: (RV, s8)

– The Department of Health (DOH), the Department of

Social Welfare and Development (DSWD), the

Department of Education (DepED), the Commission on Department of Education (DepED), the Commission on

Higher Education (CHED), the Technical Education and

Skills Development Authority (TESDA), and such other

government agencies shall render the necessary

services as nonmonetary reparation for HRVVs and/or

their families.

III. Human Rights Victims’ Claims BoardIII. Human Rights Victims’ Claims Board

Work period. The Board shall commence its two year

work period from the effectivity of this IRR. (RVI, s2)

Term of Office. The Chairperson and the Members of

the Board shall not hold any other office or

employment during their term. (RIII, s3)

IV. Human Rights Violations Victims’ Memorial

Commission


Commission

• Board of Trustees.

– The powers and functions shall be assumed by the Board of Trustees which shall be composed of the following: Chairperson of the CHR as of the following: Chairperson of the CHR as Chairperson; Chairperson of the National Historical Commission as Co-Chairperson; and Chairpersons of the CHED, the National Commission on Culture and the Arts (NCCA), the Secretary of the Department of Education and the Head of the University of the Philippines Diliman Main Library, as members. (RVIII, s1)


Commission


Commission• Powers and Functions of the Memorial Commission

– establishment, restoration, preservation and conservation of the Memorial/Museum/Library/Compendium in honor of the HRVVs during the Marcos regime.

– coordinate and collaborate with the DepED and the CHED to – coordinate and collaborate with the DepED and the CHED to ensure that the teaching of Martial Law atrocities, the lives and sacrifices of HRVVs in our history are included in the basic, secondary and tertiary education curricula.

– The Board of Trustees shall have the authority to hire and appoint its officials and employees, receive donations and grants for and on its behalf, and generate revenues for the benefit of the Commission. (RVIII, s1)

• Sukran!

• Maraming Salamat!

• Thank you!

• Daghang Salamat!• Daghang Salamat!

• Salamat gid na daku!

• Fiyo Bagi!

Documents

Draft Implementing Rules & Regulations of RA 10368