December 2009 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
G.R. No. 182498 - Gen. Avelino I. Razon, Jr., chief, Philippine National Police (PNP), et al. v. Mary Jean B. Tagitis
EN BANC
[G.R. NO. 182498 : December 3, 2009]
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTA�EDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners, v. MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent.
D E C I S I O N
BRION, J.:
We review in this Petition for Review on Certiorari 1 the decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 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.3 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.
We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are summarized below.
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.5 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.6 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.7
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.8 On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis' disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.10 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 [collectively referred to as petitioners]. After reciting Tagitis' personal circumstances and the facts outlined above, the petition went on to state:
x x x
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the room of Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis, including cell phones, documents and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines, who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, 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;
14. All of these efforts of the [respondent] 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;
15. According to reliable information received by the [respondent], 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;
x x x
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [respondent's] request and pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her husband, subject of the petition, was not missing but was with another woman having good time somewhere, which is a clear indication of the [petitioners'] refusal to help and provide police assistance in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis to his family or even to provide truthful information to [the respondent] of the subject's whereabouts, and/or allow [the respondent] to visit her husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying [sic] to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent], informed her that they are not the proper persons that she should approach, but assured her not to worry because her husband is [sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondent's] request for help and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners] are actually in physical possession and custody of [respondent's] husband, Engr. Tagitis;
x x x
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [the respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of the [petitioners], 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. [Emphasis supplied]
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.11
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.12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any personal knowledge of, or any participation in, the alleged disappearance; that he had been designated by President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated with the investigators and local police, held case conferences, rendered legal advice in connection to these cases; and gave the following summary:13
x x x
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to the said report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an unidentified companion. It was only after a few days when the said victim did not return that the matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate the whereabouts of the said missing person, but to no avail. The said PPO is still conducting investigation that will lead to the immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The said report stated among others that: subject person attended an Education Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 o'clock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 o'clock in the morning of the same date, he instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00 o'clock in the morning, Engr. Tagitis left the premises of ASY Pension House as stated by the cashier of the said pension house. Later in the afternoon, the student instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now conducting a continuous case build up and information gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search, records show that no such person is being detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions available under the circumstances and continuously search and investigate [sic] the instant case. This immense mandate, however, necessitates the indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation of the victims and witnesses to identify the perpetrators to bring them before the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:14
x x x
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth Division of the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at around six o'clock in the morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the Islamic Development Bank who was also one of the participants of the said seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At around six o'clock in the morning of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough research records show that no such person is being detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken immediate investigation and will pursue investigations up to its full completion in order to aid in the prosecution of the person or persons responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt. Leonardo A. Espina's affidavit which alleged that:16
x x x
That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged abduction was perpetrated by elements of PACER nor was there any indication that the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the Police Anti-Crime and Emergency Response (PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now continue to be one of the menace of our society is a respondent in kidnapping or illegal detention case. Simply put, our task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify and apprehend the persons responsible, to recover and preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons responsible, to identify witnesses and obtain statements from them concerning the disappearance and to determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax his written report.
That the investigation and measures being undertaken to locate/search the subject in coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the area are ongoing with the instruction not to leave any stone unturned so to speak in the investigation until the perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit detailing the actions that he had taken upon receipt of the report on Tagitis' disappearance, viz:17
x x x
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the time of the incident;
x x x
4. It is my duty to look into and take appropriate measures on any cases of reported enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the Philippine National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the student returned back to ASY Pension House, he no longer found Engr. Tagitis there and when he immediately inquired at the information counter regarding his whereabouts [sic], the person in charge in the counter informed him that Engr. Tagitis had left the premises on October 30, 2007 around 1 o'clock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police Provincial Office and other units through phone call and text messages to conduct investigation [sic] to determine the whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission, to recover and preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them concerning his disappearance, to determine the cause and manner of his disappearance, to identify and apprehend the person or persons involved in the disappearance so that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of directives for investigation and directing him to undertake exhaustive coordination efforts with the owner of ASY Pension House and student scholars of IDB in order to secure corroborative statements regarding the disappearance and whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit for polygraph examination with the NBI so as to expunge all clouds of doubt that they may somehow have knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering that it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007 addressed to PD Sulu PPO requiring them to submit complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his disappearance and submitted the following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the facts of the disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office is continuously intensifying the conduct of information gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao - as the officer in command of the area of disappearance - to form TASK FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis' disappearance.22 The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken and carried away' more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his - [personal] bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for the - IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their detention cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis, persistently denied any knowledge or complicity in any abduction.25 He further testified that prior to the hearing, he had already mobilized and given specific instructions to their supporting units to perform their respective tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.26 In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had no participation neither [sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised regarding the emolument on the Islamic Development Bank Scholar program of IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or sour grape among students who are applying for the scholar [sic] and were denied which was allegedly conducted/screened by the subject being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the disappearance of the subject might be due to the funds he maliciously spent for his personal interest and wanted to elude responsibilities from the institution where he belong as well as to the Islamic student scholars should the statement of Prof. Matli be true or there might be a professional jealousy among them.
x x x
It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed considering on [sic] the police and military actions in the area particularly the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of its intelligence monitoring and investigation for the early resolution of this instant case. But rest assured, our office, in coordination with other law-enforcement agencies in the area, are continuously and religiously conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis' disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should have been standard operating procedure in kidnappings or disappearances that the first agenda was for the police to secure clear pictures of the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having been informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued on December 28, 2007. It had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task Force Tagitis' claim that they already had an "all points bulletin", since November 5, 2007, on the missing person, Engr. Morced Tagitis. How could the police look for someone who disappeared if no clear photograph had been disseminated?cralawred
(2) Furthermore, Task Force Tagitis' COL. AHIROM AJIRIM informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirim's replacement in the latter's official designated post. Yet, P/Supt KASIM's subpoena was returned to this Court unserved. Since this Court was made to understand that it was P/Supt KASIM who was the petitioner's unofficial source of the military intelligence information that Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM in response to this court's subpoena and COL. KASIM could have confirmed the military intelligence information that bad elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in the military (whom she did not then identify) gave her information that allowed her to "specify" her allegations, "particularly paragraph 15 of the petition."29 This friend also told her that her husband "[was] in good hands."30 The respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis."31 The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a "highly confidential report" that contained the "alleged activities of Engineer Tagitis" and informed her that her husband was abducted because "he is under custodial investigation" for being a liaison for "J.I. or Jema'ah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is Tagitis' second wife, and they have been married for thirteen years; Tagitis was divorced from his first wife.33 She last communicated with her husband on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husband's disappearance on October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they arranged to meet in Manila on October 31, 2007.35 The respondent explained that it took her a few days (or on November 5, 2007) to personally ask Kunnong to report her husband's disappearance to the Jolo Police Station, since she had the impression that her husband could not communicate with her because his cellular phone's battery did not have enough power, and that he would call her when he had fully-charged his cellular phone's battery.36
The respondent also identified the high-ranking military friend, who gave her the information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.37 She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the "highly confidential report" at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with people belonging to a terrorist group and that he was under custodial investigation. She then told Col. Kasim that her husband was a diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding him the need to give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed by the respondent, detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00 o'clock in the morning; we arrived at Zamboanga Airport at around 10:00 o'clock. We [were] fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed me and got information about the personal background of Engr. Morced N. Tagitis. After he gathered all information, he revealed to us the contents of text messages they got from the cellular phone of the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall to purchase our plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were discussing some points through phone calls. He assured me that my husband is alive and he's last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my husband, because I contacted some of my friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging to tell me the exact location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to contact any AFP officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for high-ranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he assured me that he ll do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of which he mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that "Please don't quote my Name! Because this is a raw report." He assured me that my husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of my husband because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her husband, in relation particularly with the information she received from Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report and that he showed them a series of text messages from Tagitis' cellular phone, which showed that Tagitis and his daughter would meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the respondent together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he was not certain whether he was with the PNP or with the Armed Forces of the Philippines (AFP). She further recounted that based on the report Col. Kasim read in their presence, Tagitis was under custodial investigation because he was being charged with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told them that he could not give a copy of the report because it was a "raw report."45 She also related that the Col. Kasim did not tell them exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that despite what his January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any accusation, that Tagitis took away money entrusted to him.52 Prof. Matli confirmed, however, that that he had received an e-mail report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis' personal account.54
On cross-examination by the respondent's counsel, Prof. Matli testified that his January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.55 Prof Matli clarified that although he read the affidavit before signing it, he "was not so much aware of' [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondent's testimony, particularly the allegation that he had stated that Tagitis was in the custody of either the military or the PNP.57 Col. Kasim categorically denied the statements made by the respondent in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the custody of the military, since he merely said to the respondent that "your husband is in good hands" and is "probably taken cared of by his armed abductors;" and (3) that Tagitis was under custodial investigation by the military, the PNP or the CIDG Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the information he provided to the respondent was merely a "raw report" sourced from "barangay intelligence" that still needed confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his informant, who was a "civilian asset," through a letter which he considered as "unofficial."61 Col. Kasim stressed that the letter was only meant for his "consumption" and not for reading by others.62 He testified further that he destroyed the letter right after he read it to the respondent and her companions because "it was not important to him" and also because the information it contained had no importance in relation with the abduction of Tagitis.63 He explained that he did not keep the letter because it did not contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondent's allegation that Tagitis was in the custody of CIDG-Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG "investigates and prosecutes all cases involving violations in the Revised Penal Code particularly those considered as heinous crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis' reported disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability to conduct any "operation," since they were only assigned to investigate matters and to monitor the terrorism situation.68 He denied that his office conducted any surveillance on Tagitis prior to the latter's disappearance.69 Col. Pante further testified that his investigation of Tagitis' disappearance was unsuccessful; the investigation was "still facing a blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 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.72 The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion that the CIDG was involved was based on the respondent's testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis' abduction came from no less than the military - an independent agency of government. The CA thus greatly relied on the "raw report" from Col. Kasim's asset, pointing to the CIDG's involvement in Tagitis' abduction. 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, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA's March 7, 2008 decision, the petitioners mainly dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence.74
THE COURT'S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent's Amparo petition, the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis' rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible for his disappearance, and the respondent's source of information;
3) allege that the abduction was committed at the petitioners' instructions or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of their duties in the investigation of Tagitis' disappearance; andcralawlibrary
7) specify what legally available efforts she took to determine the fate or whereabouts of her husband.
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):75
(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; andcralawlibrary
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.
In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how Tagitis' rights to life, liberty and security were violated when he was "forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be police intelligence operatives," and then taken "into custody by the respondents' police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist groups."77
These allegations, in our view, 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.78 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.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have been made, specifying the manner and results of the investigation. Effectively, this requirement seeks to establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the reported disappearance.79
We reject the petitioners' argument that the respondent's petition did not comply with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately reported Tagitis' disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had disappeared. The police, however, gave them the "ready answer" that Tagitis could have been abducted by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint" with the PNP Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by the police that her husband was having "a good time with another woman." The disappearance was alleged to have been reported, too, to no less than the Governor of the ARMM, followed by the respondent's personal inquiries that yielded the factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports have been made to the police authorities, and that investigations should have followed. That the petition did not state the manner and results of the investigation that the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to perform their duty to investigate, or at the very least, their reported failed efforts, should not be a reflection on the completeness of the petition. To require the respondent to elaborately specify the names, personal circumstances, and addresses of the investigating authority, as well the manner and conduct of the investigation is an overly strict interpretation of Section 5(d), given the respondent's frustrations in securing an investigation with meaningful results. Under these circumstances, we are more than satisfied that the allegations of the petition on the investigations undertaken are sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition - that otherwise is not supported by sufficient allegations to constitute a proper cause of action - as a means to "fish" for evidence.81 The petitioners contend that the respondent's petition did not specify what "legally available efforts were taken by the respondent," and that there was an "undue haste" in the filing of the petition when, instead of cooperating with authorities, the respondent immediately invoked the Court's intervention.
We do not see the respondent's petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege "the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission." The following allegations of the respondent's petition duly outlined the actions she had taken and the frustrations she encountered, thus compelling her to file her petition.
x x x
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
x x x
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, 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;
x x x
15. According to reliable information received by the [respondent], 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;
x x x
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [the respondent's] request and pleadings failed to produce any positive results
x x x
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time;
x x x
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], 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.
Based on these considerations, we rule that the respondent's petition for the Writ of Amparo is sufficient in form and substance and that the Court of Appeals had every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an enforced disappearance situation, a brief look at the historical context of the writ and enforced disappearances would be very helpful.
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, 1941.82 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.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have "disappeared" during the military regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an international concern when the world noted its widespread and systematic use by State security forces in that continent under Operation Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the practice saw political activists secretly arrested, tortured, and killed as part of governments' counter-insurgency campaigns. As this form of political brutality became routine elsewhere in the continent, the Latin American media standardized the term "disappearance" to describe the phenomenon. The victims of enforced disappearances were called the "desaparecidos,"86 which literally means the "disappeared ones."87 In general, there are three different kinds of "disappearance" cases:
1) those of people arrested without witnesses or without positive identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and held in complete isolation for weeks or months while their families are unable to discover their whereabouts and the military authorities deny having them in custody until they eventually reappear in one detention center or another; andcralawlibrary
3) those of victims of "salvaging" who have disappeared until their lifeless bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two categories,89 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.90 Currently, the United Nations Working Group on Enforced or Involuntary Disappearance91 reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or threats thereof."93 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:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition [for] extrajudicial killings and enforced disappearances. From that definition, then we can proceed to formulate the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: - As things stand, there is no law penalizing extrajudicial killings and enforced disappearances' so initially also we have to [come up with] the nature of these extrajudicial killings and enforced disappearances [to be covered by the Rule] because our concept of killings and disappearances will define the jurisdiction of the courts. So we ll have to agree among ourselves about the nature of killings and disappearances for instance, in other jurisdictions, the rules only cover state actors. That is an element incorporated in their concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept includes acts and omissions not only of state actors but also of non state actors. Well, more specifically in the case of the Philippines for instance, should these rules include the killings, the disappearances which may be authored by let us say, the NPAs or the leftist organizations and others. So, again we need to define the nature of the extrajudicial killings and enforced disappearances that will be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of Representatives96 and in the Senate97 on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude into the ongoing legislative efforts.98
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.99 The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the country's constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to promulgate "rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts,"100 since extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security. 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.
Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires criminal action before our criminal courts based on our existing penal laws. Our intervention is in determining whether an enforced disappearance has taken place and who is responsible or accountable for this disappearance, and to define and impose the appropriate remedies to address it. 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.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights.101 It does not only violate the right to life, liberty and security of the desaparecido; it affects their families as well through the denial of their right to information regarding the circumstances of the disappeared family member. Thus, enforced disappearances have been said to be "a double form of torture," with "doubly paralyzing impact for the victims," as they "are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones" and suffer as well the serious economic hardship and poverty that in most cases follow the disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in December 1978 under Resolution 33/173. The Resolution expressed the General Assembly's deep concern arising from "reports from various parts of the world relating to enforced or involuntary disappearances," and requested the "UN Commission on Human Rights to consider the issue of enforced disappearances with a view to making appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of enforced disappearance had become a global phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance (Declaration).104 This Declaration, for the first time, provided in its third preambular clause a working description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (Convention).105 The Convention was opened for signature in Paris, France on February 6, 2007.106 Article 2 of the Convention defined enforced disappearance as follows:
For the purposes of this Convention, "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. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is a right not to be subject to enforced disappearance107 and that this right is non-derogable.108 It provides that no one shall be subjected to enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate penalties under their criminal law.109 It also recognizes the right of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and results of the investigation.110 Lastly, it classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to "promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion."112 Although no universal agreement has been reached on the precise extent of the "human rights and fundamental freedoms" guaranteed to all by the Charter,113 it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its effects on the country, given our own adherence to "generally accepted principles of international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,116 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. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of general or customary international law that are binding on all states. We held further:117
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article 38(1) of the Statute of the International Court of Justice, which provides that the Court shall apply "international custom, as evidence of a general practice accepted as law."118 The material sources of custom include State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly.119 Sometimes referred to as "evidence" of international law,120 these sources identify the substance and content of the obligations of States and are indicative of the "State practice" and "opinio juris" requirements of international law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of American States (OAS) General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994.122 State parties undertook under this Convention "not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees."123 One of the key provisions includes the States' obligation to enact the crime of forced disappearance in their respective national criminal laws and to establish jurisdiction over such cases when the crime was committed within their jurisdiction, when the victim is a national of that State, and "when the alleged criminal is within its territory and it does not proceed to extradite him," which can be interpreted as establishing universal jurisdiction among the parties to the Inter-American Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in accordance with the Inter-American Convention and have defined activities involving enforced disappearance to be criminal.125 ???�r?bl?� ??r
