Writ of Habeas Corpus
Writ of Amparo
G.R.
No. 182498 December 3, 2009
Syllabus:
We
review in this petition for review on certiorari the decision dated March
7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009. This
CA decision confirmed the enforced disappearance of Engineer Morced N. Tagitis
(Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean
B. Tagitis (respondent). The dispositive portion of the CA decision reads:
WHEREFORE,
premises considered, petition is hereby GRANTED. The Court hereby FINDS that
this is an "enforced disappearance" within the meaning of the United
Nations instruments, as used in the Amparo Rules. The privileges of
the writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently:
(1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and
Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP,
who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional
Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS,
and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police
Anti-Crime and Emergency Response, to aid him as their superior- are hereby
DIRECTED to exert extraordinary diligence and efforts, not only to
protect the life, liberty and security of Engr. Morced Tagitis, but also to
extend the privileges of the writ of amparo to Engr. Morced
Tagitis and his family, and to submit a monthly report of their actions to this
Court, as a way of PERIODIC REVIEW to enable this Court to monitor the action
of respondents.
This
amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL,
Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the
military, which is a separate and distinct organization from the police and the
CIDG, in terms of operations, chain of command and budget.
This
Decision reflects the nature of the Writ of Amparo – a protective remedy
against violations or threats of violation against the rights to life, liberty
and security. It embodies, as a remedy, the court’s directive to police
agencies to undertake specified courses of action to address the disappearance
of an individual, in this case, Engr. Morced N. Tagitis. It does not determine
guilt nor pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate remedies to address the
disappearance.
Responsibility
refers to the extent the actors have been established by substantial evidence
to have participated in whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft, among them,
the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts.
Accountability,
on the other hand, refers to the measure of remedies that should be addressed
to those who exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the enforced disappearance
and who carry the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance. In all these cases, the issuance of the Writ of Amparo
is justified by our primary goal of addressing the disappearance, so that the
life of the victim is preserved and his liberty and security are restored.
FACTS:
The
established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning
of October 31, 2007 from a seminar in Zamboanga City. They immediately
checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket
for his return trip the following day to Zamboanga. When Kunnong returned from
this errand, Tagitis was no longer around. The receptionist related that
Tagitis went out to buy food at around 12:30 in the afternoon and even left his
room key with the desk. Kunnong looked for Tagitis and even sent a text
message to the latter’s Manila-based secretary who did not know of Tagitis’
whereabouts and activities either; she advised Kunnong to simply wait.
On
November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of
Muslim studies and Tagitis’ fellow student counselor at the IDB, reported
Tagitis’ disappearance to the Jolo Police Station. On November 7,
2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.
More
than a month later (on December 28, 2007), Mary Jean Tagitis filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact,
Atty. Felipe P. Arcilla.The petition was directed against Lt. Gen. Alexander
Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief,
Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal
Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief,
Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director,
ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet.
Mary
Jean said in her statement that she approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought
help from some of their friends in the military who could help them find/locate
the whereabouts of her husband. All of her efforts did not produce any positive
results except the information from persons in the military who do not want to
be identified that Engr. Tagitis is in the hands of the uniformed men.
According to reliable information she received, subject Engr. Tagitis is in the
custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police
to involve and connect Engr. Tagitis with the different terrorist groups
particularly the Jemaah Islamiyah or JI.
She
then filed her complaint with the PNP Police Station in the ARMM in Cotobato
and in Jolo, seeking their help to find her husband, but was told of an
intriguing tale by the police that her husband was not missing but was with
another woman having good time somewhere, which is a clear indication of the
refusal of the PNP to help and provide police assistance in locating her
missing husband.
Heeding
an advise of one police officer, she went to the different police headquarters
namely Police Headquarters in Cotabato City, Davao City, Zamboanga City and
eventually in the National Headquarters in Camp Crame in Quezon City but her
efforts produced no positive results. These trips exhausted all of her
resources which pressed her to ask for financial help from friends and
relatives.
She
has exhausted all administrative avenues and remedies but to no avail, and
under the circumstances, she has no other plain, speedy and adequate remedy to
protect and get the release of her husband, Engr. Morced Tagitis, from the
illegal clutches of his captors, their intelligence operatives and the like
which are in total violation of the subject’s human and constitutional rights,
except the issuance of a WRIT OF AMPARO.
On
the same day the petition was filed, the CA immediately issued the Writ of
Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from
service of the writ.
In
their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis’ alleged
abduction. They argued that the allegations of the petition were incomplete and
did not constitute a cause of action against them; were baseless, or at best
speculative; and were merely based on hearsay evidence. In addition, they all
claimed that they exhausted all means, particularly taking pro-active measures
to investigate, search and locate Tagitis and to apprehend the persons
responsible for his disappearance.
THE
CA RULING
On
March 7, 2008, the CA issued its decision confirming that the
disappearance of Tagitis was an "enforced disappearance" under the
United Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances. The CA held that "raw reports" from an
"asset" carried "great weight" in the intelligence world.
It also labeled as "suspect" Col. Kasim’s subsequent and belated
retraction of his statement that the military, the police, or the CIDG was
involved in the abduction of Tagitis.
The
CA characterized as "too farfetched and unbelievable" and "a
bedlam of speculation" police theories painting the disappearance as
"intentional" on the part of Tagitis. He had no previous brushes with
the law or any record of overstepping the bounds of any trust regarding money
entrusted to him; no student of the IDB scholarship program ever came forward
to complain that he or she did not get his or her stipend. The CA also found no
basis for the police theory that Tagitis was "trying to escape from the
clutches of his second wife," on the basis of the respondent’s testimony
that Tagitis was a Muslim who could have many wives under the Muslim faith, and
that there was "no issue" at all when the latter divorced his first
wife in order to marry the second. Finally, the CA also ruled out kidnapping
for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for
Tagitis’ disappearance, since the respondent, the police and the military noted
that there was no acknowledgement of Tagitis’ abduction or demand for payment
of ransom – the usual modus operandi of these terrorist groups.
Based
on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante,
PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security
of Tagitis, with the obligation to provide monthly reports of their actions to
the CA. At the same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael,
based on the finding that it was PNP-CIDG, not the military, that was involved.
On
March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008.
ISSUE:
Whether
or not the privilege of the Writ of Amparo should be extended to Engr. Morced
Tagitis.
RULING:
The
disappearance of Engr. Morced Tagitis is classified as an enforced
disappearance, thus the privilege of the Writ of Amparo applies.
Under
the UN Declaration 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 the law." Under this definition, the elements
that constitute enforced disappearance are essentially fourfold:
(a) arrest,
detention, abduction or any form of deprivation of liberty;
(b) carried out by
agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State;
(c) followed by a
refusal to acknowledge the detention, or a concealment of the fate of the
disappeared person;
(d) placement of the
disappeared person outside the protection of the law.
There
was no direct evidence indicating how the victim actually disappeared. The
direct evidence at hand only shows that Tagitis went out of the ASY Pension
House after depositing his room key with the hotel desk and was never seen nor
heard of again. The undisputed conclusion, however, from all concerned – the
petitioner, Tagitis’ colleagues and even the police authorities – is that
Tagistis disappeared under mysterious circumstances and was never seen again.
A
petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite):
(c)
The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances
detailed in supporting affidavits;
(d)
The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;(e) The
actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission.
The
framers of the Amparo Rule never intended Section 5(c) to be complete in every
detail in stating the threatened or actual violation of a victim’s rights. As
in any other initiatory pleading, the pleader must of course state the ultimate
facts constituting the cause of action, omitting the evidentiary details.76 In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding,
which addresses a situation of uncertainty; the petitioner may not be able to
describe with certainty how the victim exactly disappeared, or who actually
acted to kidnap, abduct or arrest him or her, or where the victim is detained,
because these information may purposely be hidden or covered up by those who
caused the disappearance. In this type of situation, to require the level of
specificity, detail and precision that the petitioners apparently want to read
into the Amparo Rule is to make this Rule a token gesture of judicial concern
for violations of the constitutional rights to life, liberty and security.
To
read the Rules of Court requirement on pleadings while addressing the unique
Amparo situation, the test in reading the petition should be to determine
whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victim’s rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather than in
terms of its isolated component parts, to determine if the required elements –
namely, of the disappearance, the State or private action, and the actual or
threatened violations of the rights to life, liberty or security – are present.
The
properly pleaded ultimate facts within the pleader’s knowledge about Tagitis’
disappearance, the participation by agents of the State in this disappearance,
the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation of his right
to liberty. Thus, the petition cannot be faulted for any failure in its
statement of a cause of action.
If
a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to
the summary nature of the proceedings for the writ and to facilitate the
resolution of the petition, the Amparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used as the affiant’s
direct testimony. This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition if not
strictly followed. Where, as in this case, the petitioner has substantially
complied with the requirement by submitting a verified petition sufficiently
detailing the facts relied upon, the strict need for the sworn statement that
an affidavit represents is essentially fulfilled. We note that the failure to
attach the required affidavits was fully cured when the respondent and her
witness (Mrs. Talbin) personally testified in the CA hearings held on January 7
and 17 and February 18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be faulted.
The
phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941. The Third Reich’s Night and Fog Program, a State
policy, was directed at persons in occupied territories "endangering
German security"; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating
effect, the policy prohibited government officials from providing information
about the fate of these targeted persons.
In
the Philippines, enforced disappearances generally fall within the first two
categories, and 855 cases were recorded during the period of martial law
from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive
and 127 were found dead. During former President Corazon C. Aquino’s term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos’ term when only 87 cases were reported, while the
three-year term of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of
enforced disappearance under incumbent President Gloria M. Arroyo’s
administration. The Commission on Human Rights’ records show a total of 636
verified cases of enforced disappearances from 1985 to 1993. Of this number,
406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have
undetermined status.Currently, the United Nations Working Group on Enforced or
Involuntary Disappearance reports 619 outstanding cases of enforced or
involuntary disappearances covering the period December 1, 2007 to November 30,
2008.
Under Philippine Law
The
Amparo Rule expressly provides that the "writ shall cover extralegal
killings and enforced disappearances or threats thereof."We note that
although the writ specifically covers "enforced disappearances," this
concept is neither defined nor penalized in this jurisdiction. The records of
the Supreme Court Committee on the Revision of Rules (Committee) reveal that
the drafters of the Amparo Rule initially considered providing an elemental
definition of the concept of enforced disappearance:
Justice
Puno stated that, “as the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized separately from
the component criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and special
laws.”
Although
the Court’s power is strictly procedural and as such does not diminish,
increase or modify substantive rights, the legal protection that the Court can
provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel
the public authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial intervention can make a
difference – even if only procedurally – in a situation when the very same
investigating public authorities may have had a hand in the threatened or
actual violations of constitutional rights.
The
burden for the public authorities to discharge in these situations, under the
Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts
at disclosure and investigation are undertaken under pain of indirect contempt
from this Court when governmental efforts are less than what the individual
situations require. The second is to address the disappearance, so that the
life of the victim is preserved and his or her liberty and security restored.
In these senses, our orders and directives relative to the writ are continuing
efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete determination of the
fate and the whereabouts of the victim, by the production of the disappeared
person and the restoration of his or her liberty and security, and, in the
proper case, by the commencement of criminal action against the guilty parties.
During
the International Convention for the Protection of All Persons from Enforced
Disappearance (in Paris, France on February 6, 2007, "enforced disappearance" is considered
to be 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 the law.
In
the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III, we held that:
Under
the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation.
The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of
domestic law.
The
right to security of person in this third sense is a corollary of the policy
that the State "guarantees full respect for human rights" under
Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person
is rendered ineffective if government does not afford protection to these rights
especially when they are under threat.
Protection
includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The
duty to investigate must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective.
Evidentiary
Difficulties Posed by the Unique Nature of an Enforced Disappearance
The
unique evidentiary difficulties presented by enforced disappearance cases;
these difficulties form part of the setting that the implementation of the
Amparo Rule shall encounter. These difficulties largely arise because the State
itself – the party whose involvement is alleged – investigates enforced
disappearances. Past experiences in other jurisdictions show that the
evidentiary difficulties are generally threefold.
First,
there may be a deliberate concealment of the identities of the direct
perpetrators. In addition, there are usually no witnesses to the crime; if
there are, these witnesses are usually afraid to speak out publicly or to
testify on the disappearance out of fear for their own lives.
Second,
deliberate concealment of pertinent evidence of the disappearance is a distinct
possibility; the central piece of evidence in an enforced disappearance
Third
is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred. "Deniability" is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victim’s human rights.
Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
The
remedy of the writ of amparo provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability
for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and
exhaustive proceedings.
We
note in this regard that the use of flexibility in the consideration of
evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the
Rule on Examination of a Child Witness is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the
right of cross-examination by the adverse party.
CONCLUSIONS
AND THE AMPARO REMEDY
Based
on these considerations, we conclude that Col. Kasim’s disclosure, made in an
unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why would the
government and its officials engage in their chorus of concealment if the
intent had not been to deny what they already knew of the disappearance? Would
not an in-depth and thorough investigation that at least credibly determined
the fate of Tagitis be a feather in the government’s cap under the
circumstances of the disappearance? From this perspective, the evidence and
developments, particularly the Kasim evidence, already establish a concrete
case of enforced disappearance that the Amparo Rule covers. From the prism of
the UN Declaration, heretofore cited and quoted, evidence at hand and the
developments in this case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent and unfounded
government denials and haphazard handling. The disappearance as well
effectively placed Tagitis outside the protection of the law – a situation that
will subsist unless this Court acts.
Given
their mandates, the PNP and PNP-CIDG officials and members were the ones who were
remiss in their duties when the government completely failed to exercise the
extral.'
To
fully enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through
hearings the CA may deem appropriate to conduct.
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